^^' 

% 


T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 


0.  K-HdaiHs 


THE 


LAW 


OF 


SHIPPING. 


TREATISE 


ON 


THE  LAAV  OF  SHIPPING. 


BY 


HENRY   FLANDERS, 

AUTHOR  OF 

"A    TREATISE    ON    MARITIME    LAW." 


rif  I  LADE  LP  III  A: 
T.  &  J.  W.  JOHNSON,  LAW  BOOKSELLERS, 

PUBLISHERS    AND    IMPORTERS, 
NO.  197  CIIE.STNUT  8TUEKT. 

1853. 


.  I** 


Entered,  according  to  Act  of  Congress,  in  the  year  1853, 

BY     HENRY      FLANDEKS, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania. 


T 


C.      SHERMAN,     PRIMER, 

19  St.  James  Street 


Ci 


IL 

h 


is  !5Dliinn 

IS     INSCRIBED     TO 

PJCHARD   COXE   M'MURTRIE,  ESQ., 

OF   THE    PHILADELPHIA    BAR, 

AS    A   TOKEN    OF   THE   HIGH   RESPECT 
WHICH   IS    ENTERTAINED   FOR   HIS   LEARNING  AND   VIRTUES, 

BY    HIS    miEND, 

THE    AUTHOR. 


756524 


PKEFACE. 


Having  endeavored,  in  a  previous  volume,  to  col- 
lect and  embody  the  doctrines  of  the  maritime  law, 
upon  several  of  the  topics  belonging  to  that  branch 
of  our  jurisprudence,  the  author  has  thought  that 
the  performance  of  the  same  task  with  respect  to 
the  subjects  contained  in  the  present  volume,  would 
not  be  unacceptable  to  the  Profession. 

In  the  plan  of  the  work,  the  author  has  aimed 
more  at  practical  convenience  than  scientific  ar- 
rangement. 

He  cannot  forbear  to  observe  in  this  place,  that 
the  Federal  Courts,  in  the  exercise  of  their  enlarged 
Admiralty  jurisdiction,  have  reflected  honor  upon 
the  moral  and  intellectual  elevation  of  the  American 
Judiciary.  And  in  collecting  together  the  principles 
which  they  have  recognised  or  established  upon  the 
various  questions  that  have  been  presented  for  their 
adjudication,  the  author  trusts  that  he  has  done  the 
Profession  "  some  service." 

PniLADELruiA,  18G3. 


CONTENTS. 


PART   I. 

Table  of  Cases, 21-30 

CHAPTER   I. 

Of  the  Persons  Employed  iu  the  Navigation  of  Mer- 

chant  bhips,       .-.....•  oo— 1 1 

CHAPTER   11. 

Of  Statutory  Provisions  with  respect  to  Seamen,  .         42-84 

1.  Of  the  Shipping  Articles. 

2.  Of  the  Seaworthiness  of  the  Vessel. 

8.  Of  the  Supplies  Required  to  be  put  on  Board. 
4.  Of  the  Medicine  Chest. 

CHAPTER   III. 

Of  the  Master's  Authority  over  the  .'Mariners,      .         .       85-lOG 

CHAPTER   IV. 

Of  OfTenccs  committed  at  Sea,    .....     107-128 

2 


XVlll  CONTENTS. 


CHAPTER   V. 

Of  the  Discharge  of  Scaiuon, 1-20-159 

1.  Of  the  Causes  that  Justify  the  Master  in  Dis- 

charging a  Seaman. 

2.  Of  the   Mate,  and  the  Master's  Authority  to 

Discharge  or  Disrate. 

3.  Of  the  Laws  for  the  Relief  of  Seamen. 


CHAPTER   VI. 

Of  the  Master's  Authority  as  to  the  Employment  of  the 

Ship, 160-178 


CHAPTER   VII. 

Of  the  jMaster's  Authority  with  Respect  to  the  Vessel,     179-188 

1.  Of  the  Master's  Relation  to  the  Owners. 

2.  Of  his  Duties  in  Time  of  War. 


CHAPTER   VIII. 

Of  the  Master's  Duty  upon  an  Interruption  of  the  Voy- 
age,       189-195 


CHAPTER   IX. 

Of  the  Carriage  of  Goods, 196-231 

CHAPTER    X. 

Of  the  Commencement  and  Prosecution  of  the  Voyage,     232-270 

CHAPTER   XL 

Of  the  Delivery  of  the  Goods  at  the  Port  of  Destination,     271-287 


CONTEXTS.  XIX 

CHAPTER  XII. 
Of  the  Ship-owner's  Responsibility,    ....     2SS-313 

CHAPTER   XIII. 

Of  the  Seiiuian's  Remedy  for  his  Wages,     .         .         ,     314-352 


PART  II. 

CHAPTER    I. 
Of  Part-Owners, 355-390 

CHAPTER   II. 

Of  the  Liability  of  Mortgagees  of  Ships,     .         .         .     391-399 

CHAPTER   III. 
Of  Pilots, 400-422 

CHAPTER    IV. 
Of  the  Conveyance  of  Passengers,       ....     423-448 

CHAJ'TKU    V. 
Of  the  Conveyance  of  Goods  in  a  General  Ship,  .         .     449-471 


XX  CONTENTS. 

CHAPTER   VI. 

Of  the  Earning  :nul  Payment  of  Freight,     .  .         .     472-518 

CHAPTER   VII. 

Of  Stoppage  in  Transitu, 519-543  . 


TABLE   OF   CASES. 


A. 


Aberfoyle,  The,       283,  425,  473, 

475 

Achsah,  The, 

425, 

446 

Ada,  The,   .... 

• 

49 

Addison  v.  Overend, 

, 

384 

Adonis,  The, 

185, 

186 

Agincourt,  The, 

88,  89 

,  98 

Agricola,  The,    . 

410, 

414 

Akerman  v.  Humphrey,     . 

. 

541 

Alexander,  The, 

, 

186 

Aline,  'I'he, 

, 

425 

Alien  V.  Mercicr, 

528, 

529 

Allen  V.  Williams, 

4G4, 

465 

American  Ins.  Co.  v.  Cente 

;r,  247 

256 

V.  Cori< 

jr,     . 

267 

V.  Ogde 

'n,    . 

204 

Amiable  Nancy,  The, 

, 

176 

Amies  v.  Stevens, 

. 

307 

Amroyd  v.  Union  Ins.  Co. 

, 

251 

Anders  v.  Merediili,  . 

389 

Andrew  v.  INIoorhousc, 

426, 

491 

Angerona,  The, 

, 

510 

Ann  D.  Richardson,  The, 

.     251 

252 

Anne,  The, 

.     407, 

418 

Annen  v.  Woodman,  . 

. 

199 

Ann  (Jrcen,  The, 

.     489 

490 

Anionia  Johaima,  The, 

, 

282 

Apollo,  The.     359,  3G1,  SC 

2,370 

382 

Apollon,  The,     . 

, 

178 

Appleby  V.  Dods, 

, 

55 

Arngo  V.  Cnrrol, 

. 

181 

Arnold  v.  (Jiimp, 

. 

375 

Arthur  v.  Burton, 

, 

180 

Anh  V.  rutniim,  . 

.     520 

522 

Aepinwall  v.  IJarilelt, 

328 

Adton  V.  Heaven, 

428 

yXtkinson  v.  Mnling,   . 

. 

398 

Aikyns  v.  Burrows, 

3:.,  114,  iir.,  14 

8,  1.50 

345 

Ailnnlif,  The,     . 

220 

Alln«,  The, 

227 

Aiwood  V.  The  Reliance  ' 

'ronsp 

Co  , 

,                , 

304 

Aurora,  The, 

.     179 

360 

Austin  V.  Craven, 

,                  , 

540 

V.  Thr-  .Vlnnchcsier 

,&.c., 

R.Co., 

.     437 

,439 

Aymer  v.  Asior, 

, 

2G4 

B. 

Backhouse  v.  Sneed,  . 
Badlam  v.  Tucker,  . 
Bailie  v.  Modigliani,  . 
Bains  v.  The   Schooner 

&  Catherine, 
Baker  v.  Corey, . 
Balderston  v.  Mauro,  . 
Bangs  V.  Little, . 
Barber  v.  Brace, 
Barker  v.  Blakes, 
Barker  v.  Cheriot,     . . 

V.  Havens, 

V.  Hodgson,    . 
Barn  v.  Morris,  . 
Barque  Talent.  The,  . 
Fiarrett  v.  Goddard,     . 
Barrow  v.  Coles, 
Barton  v.  Wolliford,  . 
Bas  v.  Steele, 
Baiavia,  The, 
Bates  V.  Todd,    . 
Batson  v.  Donavan,    . 
Baxter  v.  Leland, 
Baylis  v.  Fettyplacc,  . 

V.  Usher,  . 
Beal  v.  Thompson, 
Beaver,  The, 
Bell  V.  Humphries, 

v.  Read, 
Benares,  The,     . 
Bennett  v.  iJutton, 
V.  Moiia, 
Benton  v.  Whitney,    . 
Betsey  Caines,  'J'hc,  . 
Betts  V.  (iibbons. 
Biddlfcombc  v.  Bond, 
Bigelow  V.  Hcaton, 
Birckbeck  v.  'I'ucker, 
Bishop  V.  reniliiiid,    . 

V.  Ware, 
i^lnck  V.  The  Louisiana, 
inaireau.  The,     . 
iJlako.  The, 
Bluri(  hard  v.  [3uckram, 
V.  Isaacs,    . 
Bland,  ex  parte, 
Bloxom  V.  Hubbard,  . 


307 
162 
247 


)  ames 


503, 


43 


2,  43 


214, 


474 

5,  61 

519 

86 

209,  214,  216 
223 
516 
504 
443 
384 
72 
540 
467 
296 
229 
414 
454 
1,  437 
216 
484 
304 
485 
424 
378 
291 
321 
432 
422 
106 
284 
532 
519 
502 
397 
203 
273 
143 
234,  235 
143 
517 
432 
372 
384 


198, 


XXll 


T  A  1!  L  E     0  F     C  A  S  E  S. 


Bodcnham  v.  Ronnoii, 

43(; 

Hold  IhuTl.MisjIi,  ■!  Iio, 

17:!. 

3J1 

Holin  V.  Ihitlniijzlo,     . 

.'i34 

]?oli(m  V.  Amer.  li>s.  Co., -J 

TJ,  00  J 

.4  JO 

Boiiil  V.  iirig  Cora, 

.     v.'3j. 

23(i 

V.  Erost,     . 

, 

454 

BorU  V.  Norion,  . 

242, 

483 

Boston  ami  Carjro,  The, 

234, 

235 

Hoililingk  V.  liiglis.     . 

533 

Rouclier  v.  Lawson,    . 

, 

161 

IJowflier  V.  \Viilstrom, 

175 

Buwcii  V.  yiuddard,    . 

172 

Bowman  v.  'I't-all, 

.     304, 

312 

Boycc  V.  Anderson,    , 

, 

428 

V.  Baylifle, 

, 

424 

V.  Douglass, 

, 

424 

V.  Welch, 

309, 

313 

Boyle  V.  M'Lauglilin, 

. 

232 

Bradlnirst  v.  Col.  Ins.  Co. 

. 

246 

Bradi^ireet  v.  B.ildsvin, 

484 

Branett  v.  iiowlby,     . 

, 

466 

Bray  v.  Ship  Atlanta, 

331 

Brig  George,  The, 

75,  77,  79, 

82,  84, 

154 

Bronde  v.  Haven, 

327, 

328 

Brooke  V.  Pickwick,  . 

432, 

434 

Brooks  V.  Bondsey,     . 

391, 

394 

V.  Dorr,  . 

328 

Brouncker  v.  8coit,    . 

503 

Brown  v.  Delano, 

468 

V.  Hnni.  . 

517 

V.  The  Independen 

ce,     . 

99 

V.  Jones, . 

46,  48,  50 

V.  Lull,    . 

.       54, 

328 

V.  Ralston,       .     27 

7,  442. 

498 

V.  Shaw, . 
Bryant  v.  Com.  Ins.  Co., 
Buck  V.  Hatfield, 
V.  Lane,     . 
Buckley  v.  Eurniss,    . 
BufTington  v.  Curtis,  . 
Buller  V.  Eisher, 
Bunney  v.  Foyntz, 
Burgen  v.  Sharpe, 
Burk  V.  Royal  Ex.  Co., 
Burke  v.  Clark,  . 
V.  Treviti, 
Burkink  v.  Purin, 
Bussey  v.  Donaldson, 
Buller  V.  .McLellan,    . 


231 
254 
221 
144 
532 
464 
308 
532 
238 
203 
374 
178 
499 
409 
87,  101,  157 


255, 


521 


170, 


Cambridge,  The,         ...      48 
Camden  &.  Ainboy  R.  &  T.  Co. 


V.  Baldauf, 

440 

V.  Burke,  . 

435 

,436 

Campbell  v.  Steele,    . 

, 

356 

V.  Steine,    . 

, 

378 

V.  Thompson,     . 

, 

267 

Caneran  v.  [Nleaburn, . 

, 

258 

Card  V.  Hope, 

362 

365 

Carey  v.  The  Betty,  . 

344 

Carlisle  v.  Steamer  Budora 

J 

372 

(.""nrlton  v.  Davis,         .         .        95, 
Carr  v.  The  Lancashire,  <.^c.,  Co., 
Cuiruihers  v.  Sydcbotham, 
Casco,  'J'lie  Brig,      1G6,  292,  293, 
Case  V.  W'oolley, 
Cnsilley  v.  Young, 
Cassius,  The  Schooner,   277,  348, 
Catharine,  The  Ship,  . 
Cathariiia  Elizabeth,  The, 
Cato,  The, 

Cazcv.  Halt.  Ins.  Co.,         .     247, 
Certain  logs  ol  niahogany, 

281,484, 
Chamberlain  v.  Chandler, 

178,  423,  425, 
Charnbcrlin  v.  Milbank,     . 
Chaniplin  v.  Builer,     .         .     391, 
Chandler  v.  Belden,    . 

v.  Spragiic,  .     460,  4C2, 
Chapman  V.  Durant, 
Chase  v.  lOagle  Ins.  Co.,    . 

V.  West  more,   . 
Chcever  v.  Smith, 
Chesley  v.  Thompson, 
Cheviott  V.  Brooks,     . 
Chiekering  v.  Eowler 
Chipjieiidale 
R.  Co.,     . 
Christiana,  The, 
Christie  v.  Griggs, 
V.  Lewis, 
Chusan,  The  Barque, 
Citizens'  Bank  and   Nantucket 

Steam  Co..        .         .         .    428, 
City  ol' London,  The, . 

New  York  V.  Miln, 
Clark  V.  Barnwell, 

215,  217,  232,263, 
V.  Mass.  E.  and  M.  Ins. 
Co.,         .         .         .     249, 
Clarkson  v.  Edcs, 
Clay  V.  Harrison, 


.     274, 
V.  The  Lancashire 

.*     409, 


V.  W 


man, 


502, 


251,  515, 


Clemson  v.  Davidson, 

Cliflbrd  V.  Hunter, 

Cock  V.  Taylor,  . 

Cod  wise  V.  Hacker,    . 

Coffin  V.  Storor, 

Cole  V.  tJoodwin, 

Coles  V.  Mar.  Ins.  Co., 

Collins  V.  I'nion  Trans.  Co., 

Colson  V.  Bondsey,     .         .      391, 

Colt  V.  M'Mechen,     .         .      307, 

Columbian  Ins.  Co.  v.  Catlett,  . 

Commercen,  The,    227,  228,  229, 

Com.  V.  Shultz,  . 

Connor  v.  Levering. 

Conrad  v  Atlantic  Ins.  Co 

Constitution,  The, 

Converse  v.  Symes,    .        .     384, 

Conyers  v.  Eiiiiis,       .         .     519, 

Cook  V.  Gourdiu, 

Cooke  V.  Com.  Ins.  Co.,  171,  194, 

Cooley  V.  Board  of  Wardens,  402, 

Coope  V.  Eyre,  .... 


105 
439 
409 
29(; 
322 
245 
502 
337 
187 
236 
478 

501 

430 
453 
394 
.501 
542 
372 
242 
501 
375 
389 
193 
275 

439 

422 
428 
281 
375 

429 
333 
445 

471 

250 
502 
525 
436 
281 
155 
507 
237 
518 
442 
234 
507 
394 
309 
247 
491 
431 
272 
542 
416 
3.S5 
520 
201 
272 
405 
389 


TABLE    OF    CASES. 


XXIU 


Cope  V.  Cordova,        .        .        •     275 
V.  Dodd.     .         .     443,  444,  491 
Copeland   v.   N.   E.  Mar.    Ins. 

Co 154,  155,  265 

Copenhagen,  The,  .  .  .  488 
Cordray  v.  Mordecai,  -        •     391 

Coriolaiui?.  The,  .         91,93,135 

Cotel  V.  Hilliard,  ...  57 
Countess  ot  Harcourt,  The,  .  48 
Cox  V.  Harden,  ....    46G 

V.  Reid 372 

Craven  v.  Ryder.  .  .  •  221 
Crawshav  v.  Hornfrav,  .  .  501 
Creole,  The,  .  408,  417,  435,  445 
Crosby  v.  Filch, 

218,  234,  296,  302,  304 
Crousillal  v.  Ball,  .  .  .171 
Crusader,  The,  .  .  .  42,  51 
Cumberland,  The,  .  .  •  ^^^ 
Cumming  v.  Brown,  .  .  .  513 
Curling  v.  Long,  .         .         •     482 

Cushman  v.  Ryan,      ...      98 
Cutler  V.  Thurlo,        .        •     391,394 
v.  Winsor,       .         .         •     318 
Cynthia,  The,     .        .        •        .473 


D. 


Dale  V.  Hall,  .  .  .  107,  263 
Dame  v.  Hadlock,       .         .         .     394 

David  V.  Eloi 374 

David  Pratt.  The,  .  .  316,  547 
Davidson  v.  Gwyne,  .  .  .  2(il 
Davies  v.  Johnston,    .        .        •    362 

Davis  v.  Child \^0 

v.  Garrett,  .        .     218, 234 

v.  James,  ....  462 
Dawes  v.  Peck,  .  .  .  451,462 
Dawn,  The,  .  .  131,132,133 
Day  V.  Noble,  ....  272 
Dean  v.  Angus,  .  .  •  .173 
Dcdcrer  v.  The  Del.  Ins.  Co.,  109,  110 
Del.  Col.  V.  Arnold,  .  .  •  176 
De  Lovio  V.  Boit,  .  .  338,  339 
Dc  Moiicr  v.  The  South  Carolina,  336 
Denison  v.  .Seymour,  .  .  •  165 
Dcpcysier  v.  Col.  Ins.  Co.,     265,  310 

DcrMohr 489 

Dctouchcs  V.  Peck,  .  .  .  492 
De  Vau.\  v.  Salvador,  .         .     270 

Dc    Villers    v.    Schooner    John 
Bell,         .         .         .     311,499,500 

Diana,  The 490 

Dick  v.  R.ed 303 

Die  Fir<!  Darner,  .        .        .176 

Di.spatch.  The 194 

Di.xon  V.  The  Cyrus,  .        .        65,  66 

V.  Sadler 202 

Doddini;ton  v.  Hallclt.  .  3.58,  380 
Dodyc  V.  Tiio   Union   .Mar.  Ins. 

Co 247,2.^.8 

Donif  It  V.  liirkford,  .  .  .'.03,  501 
Donulh  V.  IJrooinhcad,  521,  528,  530 
Dorcniua  v.  Scldcn,    .  .    385 


Dorr  V.  N.  J.  Steam  Nav.  Co., 

436,  441 
Douglass  V.  Eyre,  .  .  .50 
V.  Kemble,  .  .  .  503 
V.  Moody,  .  .  .189 
Down  V.  Froinont,  .  .  .  436 
Dowthorpe,  The,  .  .  .  398 
Drew  V.  Bird,  .  .  •  503,  504 
Dniid,  The,  .         .         .     168,  175 

Duchess  of  Kent,  The,  .  .  157 
Duffv.  Bavard,    .         .         .     391,  397 

V.  Budd 463 

Duffie  V.  Hayes.  .         .         .     491 

Duke  of  Manchester,  The,  .     412 

Dunbar  v.  Buck,  .         .         •     495 

Dundee,  The,  .  .  .  174,  178 
Dunnelt  v.  Tomhagen,  .  .  512 
Dunseth  v.  Wade,  .  239,  245,  456 
Dusar  v.  Mursatroyd,  .  35,  175 
Duiton  V.  Poole,  .        .        .462 

Duttoii  V.  Solomoiison,       .        .     451 


E. 

Eades  v.  Vandepert,   . 
Eagle  V.  White, . 
Earl  V.  Rovvcroft, 
Eastern  Star,  The, 
Edward,  The,      . 
Edwards  V.  Brewer,     . 

V.  Todd, 
Elizabeth,  The,  .      146, 
Flliott  V.  Russell, 
Ellis  V.  Hunt, 
Ellison  V.  The  Bellona, 
Elsebe,  The,       .      186, 
Elvira,  The, 
Elwell  v.  Martin, 
Finanuel,  The,    . 
ICitibden,  The,     . 
Emerson  v.  Howland, 
Emery  v.  Horsey,      161, 
Encharilrcss,  'i"he, 
Esc()i)iiiiclu'  V.  Stewart, 
Evans  v.  Martlett, 

V.  Souli',  . 
Everett  v.  Salius, 
Ewart  V.  Street,  . 
E.xeter,  The  Ship,      97,  1 


F. 

Fair  .\merican,  The,  . 
Fairchild  v.  Slocum,  ^  . 
Faith  V.  Kixsi  India  Co. 
Fashion,  The  Sloop,  . 
Favorite,  The,     . 
Feise  V.  Wray,    . 
Ferguson  v.   I.ord, 
FetK'r  V.  I''irld,    . 
Fi.shcr  V.  Willing, 
FiHk  V.  Ni:wi(in, 
Fitch  V.  Newberry,     . 


340, 


343 

279 

171 

341 

229 

535 

508 

192,  193,  400 

288,  291 

.     540 

.     336 

187,  188, 194 

.     401 

90,  99 

.     227 

.       36 

3,  146,  343 

71,213,348 

178 

514 

462 

436 

258 

264 

48,  153,  346 


, 

338 

.  296 

304 

. 

281 

.  348, 

352 

.   84. 

1.54 

.  .V23, 

526 

.  394, 

395 

. 

528 

.'  322, 

394 

, 

276 

,    , 

499 

XXIV 


TABLE    OF    CASES. 


Flnndcrs  v.  Mcrritt,    . 
Flaniixen  v.  Wnsliington  In 
Flcti-licr  V.  Inglis. 
Foninine  v.  Col.  Ins.  Co..  . 
Forbes  v.  Parsons,      .   88, 
Forest,  The,        .        .    75, 
Forsokcl,  Tlio.    . 
Forsyilie  v.  Walker,  . 
Foriiiude.  The  Ship,  . 
Furl  una.  Tiic,    . 
Forward  v.  Piltard,    . 
Foster,  c.\  pane, 

V.  Franipton,  . 

V.  Gardner,    . 
Fowler  V.  Rymcr, 
Fragano  v.  Long, 
Franklin,  The,    . 
Frazicr  v.  Ililliard, 
Frederick,  The,  . 
Freeman  v.  East  India  Co. 

V.  Birch, 
French  v.  Backhouse, 
Friendship,  The, 
Frith  V.  Barker,  . 
Fuller  V.  Colby, . 


Co. 


179, 
197, 


391 
419 
.  309 
.  267 
97.  99,  151 
.  76,  77,  80 
.  3'.^8 
.  -llw 
182 
489 
29.'i 
341 
fvlO 
236 
533 
509 
229 
531 
400 
256 
.  462 
.  378 
.  229 
.  509 
94,  98 


528, 
36, 


G. 


148,  153, 


Galloway  v.  Morris, 
Gardner  v.  Cleveland, 

V.  The  New  Jersey, 
Garnett  v.  Willan, 
Garrigues  v.  Co.x, 
Garritt  v.  Davis, 
Gatclifte  v.  Bourn, 
Gazelle,  The,      . 
Gazzam  v.  Ohio  Ins. 
Gen.  Int.  Ins.  Co.  v. 
Gen.  Mutual  Ins.  Co 


.     199, 

297, 

77,  ~278', 


Co.,  . 
Ruggles, 
.  V.  yher- 


203, 


wood. 
General  Smith,  The, 
Gentleman,  The, 
George,  The, 
George  Home,  The, 
George  the  Third, 
Gernon  v.  Cockran, 
Gibbon  v.  Paynton, 
Gibbons  v.  Ogden, 
Gibbs  V.  The  Texas, 
Gibson  v.  Carruthers, 
V.  Culver, 
Ex  parte, 
Gillan  v.  .Simpkin, 
Gilmore  v.  Carman, 
Gipsey,  The, 
Girolamo,  The,  . 
Globe,  The, 
Glover  v.  Austin, 
V.  Dufour, 
Gracie  v.  Palmer. 
Grafion,  The  Ship, 
Grand  Turk,  The, 
Grant  V.  Norway,     162,164,182, 

V.  .Stone,  .... 

V.  Wood,  .... 


48 


197, 


.     276, 

."  426, 
197,  298, 

.  414, 
411,  417, 


313, 

281, 


345 
374 
71 
271 
263 
302 
279 
321 
238 
164 

270 
473 
202 
322 
,54 
40 
161 
432 
404 
182 
524 
278 
381 
491 
459 
415 
420 
314 
357 
509 
.501 
274 
321 
452 
502 
503 


Gratitudine,  The, 

165. 190,  246,  249,  251,259,  267, 
2(;9,  496 
Gravcsv.  Sawccr,        .        .        .     389 
Great  Northern  R.  Co.  v.  Shep- 
herd  434 

(?reen  v.  Haythorne,  .  .  .  539 
(irilliiii  V.  Ingledew,  .  .  .  462 
(Jriggs  V.  Austin,  283,  443,  473,  492 
Griswold  v.  New  York  Ins.  Co., 

246,250,508 
Grove  v.  Brien,  ....  466 
Guillett  V.  Dossatt,     .        .        .    389 


H. 


Haase,  The 227 

Hadlcy  V.  Clark,  .         .        .484 

Hngcdorn  v.  Oliverson,  .  .  378 
Ilahn  v.  Corbett,  .  .  .297 
Ilaille  v.  Smith,  .         .      464,  466 

Hale  V.  N.  J.  St.  Nav.  Co.,  .  441 
Hall  V.  Washington  Ins.  Co.,  .  270 
Halle  V.  Heightman,  .  .  .  146 
Halwerson  v.  Cole, 

252,  256,  478,  480,  483 
Hamilton  v.  Warfield,  .  .  517 
Hainmand  v.  Essex  F.  and  M. 

Ins.  Co.,  .        .         .        .     322,332 
Hand  v.  Baynes, 

234,  240,  273,  277,  304 
Hannay  v.  Eve,  .        .        .     193 

Hanson  V.  Meyer,  .  .  .  540 
Harden  v.  Gordon, 

54,  75,  76,  77,  79,  338,  347 


Harding  v.  Foxcroi't, 
Harman  v.  Anderson, 
Harriet,  The, 
Harrington  v.  Lyles,  . 

V.  M' Shane, 
Harris  v.  Packwood,  . 
Harrison,  Ex  Parte,   . 
V.  Vose, 


Hart  V.  Allen,  198,  219,  235,  288,  303 

v.  Fitzgerald, 

V.  Ship  Jane  Ross, 
Harvey,  The, 
Hastings  v.  The  Happy  R 

v.  Pepper,   . 
Hathon  v.  Curtis, 
Havelock  v.  Geddes,  . 
Hawcs  V.  Watson, 
Hawkins  v.  Hoflinan, 
Hays  V.  Mouillo, 
Ilaywnrd  v.  Middlelon, 
Hazard  v.  N.  E.  Ins.  Co., 
Heinrich,  'I'he,    . 
Helm  v.  Smith,   . 
Henderson  v.  Maycw, 
Henry  Ewbank,  The, 
Herbert  v.  Hallott,      . 
Hercules,  The  Brig,    . 
Herman  v.   Western  M.  and 
Ins.  Co.,  .... 


357 
539,  540 
.  72 
200,  201 
.  298 
.  437 
.  381 
.    231 


384 

.     312 

.       56 

turn,      80 

301,302 
.     165 

497,  517 
,  221 
.  434 
.  528 
.     .503 

265,  310 
49,  51 
.  356 
.     391 

235,  236 
.  246 
.    474 

F. 
.    239 


TABLE    OF    CASES. 


XXV 


356, 


165, 
454, 


277, 


400, 


525, 
269, 


391 

381 

389 

379 

464 

375 

398 

279 

281 

356 

485 

407 

234 

505 

527 

281 

486 

203 

313 

296 

539 

441 

325 


356, 


Heskcth  v.  Stevens,    . 
He  welt  V.  Sturdevant, 
Hewin  v.  Eaton, 
Hewitt  V.  Buck,  . 
Hibbert  v.  Carter, 
Hifgins  V.  Packard,    . 
Highlander,  The, 
Hill  V.  Humphreys,     . 
Hindman  v.  Shaw,      . 
Hinton  v.  Low,  . 
Hiram,  The, 
Hobart  v.  Drogan, 
V.  Norton, 
Hodgson  V.  Butts, 
V.  Ley, 

V.  Woodhause, 
Hoffnung,  The, 
Holdsworth  v.  Wise, . 
Holland  v.  Cammcl,    . 
Hollingsworth  v.  Brodene 
V.  Napier, 
Hollister  V.  Nowlen,  . 
Holmes  v.  Bigelow,    . 
V.  Hutchinson, 

76,  79,  80,  81 
V.  The  Lodemia,  . 
Hood  V.  Nesbit, 

Hoop,  The,         .        •        •        • 
Hooper  v.  Siirky, 

V.  Whitney, 
Hopkins  v.  Forsyth, 
Horn  V.  Whitmore, 
Hoskins  v.  Slayton, 
Howard  v.  Tucker, 
Hoxier  v.  Carr,  . 
Hughes  V.  Union  Ins 
Humphrey  v.  Reed, 
Hunt  V.  Morris,  . 
Hunter  V.  Fry,    .        •        •        • 
Morning  Star,  The,  . 
Parker, 

Potts,  .  .  •  264, 
Princcps,  .  .  478, 
Union  Ins.  Co.,  The, 

Huntress,  The, 

197,211,271,289,290.428, 

Hurd  V.  Darling, 
Hurry  v.  Hurry,  . 

V.  Mangles, 
Hurscy  v.  Allen. 
Hu8!<ey  V.  Christie, 
Hutchinson  v.  Coombs,    1 13,  116, 
Hyde  v.  Trent,  and  Mersey  Nav. 

Co., '^'' 

Hynes  v,  Kirkman,     . 


1. 

IllHlcy  V.  Siutibs, 
FmniniiMfl,  'I'he, 
Indcpfndcnrf.  The,    . 
InRnilH  V.  BiIIh.  .         .         • 
IngnrHoli  v.  Van  Bokkelin, 
Inglis  V.  Ubhcrwood, 


Invincible,^The, 
Isabella,  The, 


.     173 
55,  251,  485 


Co. 


197, 


V. 
V. 
V. 
V. 
V. 


,82 

341 

110 

282 

378 

180 

357 

341 

162 

454 

359 

242 

509 

300 

221 

300 

259 

310 

480 

478 

471 
389 
161 
539 
372 
162 
147 

274 
324 


Jackson  v.  Robinson, 
V.  White,       . 
lasers  v.  Brummings, 
James  v.  Bi.xby,       262,  372 
Jane.  The  Schooner,  . 
Jencks  v.  Coleman,    . 
Jerusalem,  The, 
Jesse  V.  Roy, 

Johan  V.  Siegmund,  The,    . 
Johns  V.  Simons, 
Johnson  v.  Dallon, 
V.  Friar, 
V.  Huckins, 
Jolly  V.  Ohio  Ins.  Co., 
Jones  V.  Blum,    . 
V.  Vorhees, 
V.  Wilkins, 
Jonge  Margaretta,  The,      . 

Tobias,  The,    . 
Jordan  v.  Fall  R.  R.  Co 

V.  Warren  Ins.  Co  , 

251,252,257,478,482 

V.  Wilkins,      .        .        -384 
Joseph  Harvey,  The,  .        .    424 

Jouannean  v.  Shannoti,    ^ .  _^  ^^^^  36. 


.     469 
.     347 
.     378 
391,  394 
.     341 
.    429 
.     337 
.       55 
.     185 
.     180 
.     146 
.        .     307 
84,  1.53 
.     238 
.     391 
.     434 
.     385 
.     228,  229 
.     226,  227 
The,      433 
190,246, 


.526, 

.538 

227 

135 

138 

. 

428 

. 

505 

. 

520 

Joy  V.  Allen, 
V.  Alny, 
Juhel  V.  Rhinelander, 
Julian,  The, 
Juniata,  The, 


K. 

Karasan, 

Kceler  v.  Firemen  s  Ins 
202,  204,  206, 
Keer  V.  Willan,  . 
Kemp  v.  Coughty, 

171,194, 
Kendrick  v.  Delafield, 

109, 
Kimball  v.  Tucker,     . 
King  v.  Lenno.x, 
V.  Richards. 
V.  Shepi)ard, 
Klcinc  V.  Catara, 
Knight  V.  Cambridge, 
Knowllon  v.  Boss, 
Knox  V.  Uampbell,     • 
Kohn  V.  Packard, 


L. 

La  Amislad  do  Rues, 

La  Belle  Creole. 

La  Combo  v.  Wain,  . 


90,  92 

.     223 

54,  55 

131,  133 


176,  178 
.  Co., 

238,  420,  421 
.     437 

197,  213,  272 

171,  194,272 

.     199,  254 

162,  163,  168 

.     499 

.     261.  288 

.     494 

.     110 

.       68,  134 

.     356 

.     274,  277 


176 
236 
498 


XXVI 


TAliLK    OF    CASES. 


Laiiv  Ann.  The,         .        .        .    Sin 
"  Cnmiil.cll.  The,         .        .     Ml 

Durl.am.  Tlie,  .  .  .  3J» 
Lamb  v.  Durant,  .         .     358,  3S\ 

Lanison  v.  Wcstcott,  .         .       75 

Lane  v.  Jackson,         .         .     522,  524 

V.  Pcnniman,  .  322,  4S4,  505 
Langdon  Chccvcs,  .  .  .  331) 
Luvaroni  v.  Drury,  .  .  .  263 
Lavinia.  The,  .  283,443,473,4'.)! 
Law  V.  Hollinpworlh.  202,  203,  411) 
Lawrence  v.  ISew  Bedlorii  Com. 

Ins.  Co.,  The,  .        .    258,  259 

Lawrence  v.  Sebor,  .  .  .  378 
Lawtlirop  v.  Smitli,  .  .  .  389 
Layng  v.  Stewart,  .  .  .  503 
Leech  v.  Baldwin,  .  .  .509 
Lcland  v.  The  Ship  Medora,  .  398 
Lemon  v.  Gordon,  .  .  443, 491 
Leonard  v.  Harrington,  .  .  373 
V.  Iluntiiigton,  .  .  391 
Lewis  V.  Hancock,  .  .  .  505 
Lickbarrow  v.  Mason,  452,  464,  542 
Liddard  v.  Lopez,  .  .  .  485 
Little  V.  Seniple,  .  .  .  245 
Livingston's  L.x'rs  v.  Tremper,  385 
V.  Maryland 
Lis.  Co.,  .  230 
Lochlibo,  The,  .  .  .  409,412 
Lodemia,  The,  ....  363 
Lord  Hobart,  The,  .  .  .335 
Louisa  Bertha,  The,  .  .  .  325 
Low  V.  Com.  of  Pilotage,  .        .    401 

V.  De  Wolf,        .         .     454,  4fi4 

V.  Mumford,        .         .         .     386 
Lowndes,  The  Brig,  .     456,  499 

Lowry  v.  Russell,  .  .  242, 468 
Lowther  Castle,  The,  .  .  88 
Lucena  v.  Crawford,  .  .  .  378 
Ludlow  V.  Bowne,  .  .  .  462 
Luke  V.  Lyde,  .  .  .  190,  514 
Luscomb  V.  Osgood,  .  .  132,  329 
Lyons  v.  Martin,  .  .  .  175 
V.  Mells,  .         .         .     200,  436 


M. 

Mackintosh  v.  Slade,  .        .    409 

Macy  V.  De  Wolf,  .  356,  357,  363 
M'Arihur  v.  Sears,  197,  297,  304,  307 
M' Bride  v.  Marine  Ins.  Co.,  332,  484 
M'Cluresv.  Hammond,  .  200,291 
M'Dermott  v.  S.  G.  Owens,  .  335 
M'Gill  V.  Rowand,  .  .  .  434 
M'Gloin  V.  Henderson,  .  .  426 
M'Gregor  v.  Kilgore,  197,  245,  457 
M'Henry  v.  R.  R.  Co.,  .  .  279 
M'Intyrc  V.  Scott,  .  .  391,394 
M'Manus  V.  Crickett,         .  175 

M'Millan  v.  U.  Ins.  Co.,  .  419,  421 
M'Mullan  v.  U.  Ins.  Co.,  .  202,  204 
Maddo.x  v.  Goddard,  .  .  .389 
Madonna  del  Burso,  The,  .     257 


Mngalhaeni  v.  B  usher, 
Magco  V.  The  Moss, 
Major  V.  White, 
Malonc  v.  Bell,  . 

V.  The  Brig  Mary, 
Malpica  v.  M'Koiin,   . 
Mnnslicld  v.  Mailland, 
Manter  v.  Holmes, 
Mnrcardicr  v.   Chesapeake 

Co., 
Margaret,  The, 


.  303 
46,48,  51,92 
216,  217 
.  345 
.  153 
.  181 
.  491 
.     348 


Maria,  The, 


Marianna  Flora,  The, 
Marine  Ins.  Co.  v.  Lenno.x 
Marquand  v.  Webb,  . 
Martens  v.  Ballard,    . 
Martha,  The, 
Martin  v.  Pa.xon, 

V.  Salem  Ins.  Co., 
Mary,  I'he,  .        .        T2,' 
Mary  Ann,  The, 

Guest,  The, 
Maryland  v.  Webb,    . 
Mathewson  v.  Clark, 
Matthews  v.  Offlcy,    . 
Max  V.  Roberts, 
Maycll  V.  Potter, 
Mays  V.  Harding, 
Mechanics  and  Traders'  Bi 

Gordon,    . 
Mentor,  The  Ship, 
Merian  v.  Funck, 
Merrill  v.  Bartlctt,      . 
Michaelson  v.  Dennison, 
Michcson  v.  Nicoll,    . 
Miller  v.  Fletcher, 


188,409,410,412 


Miln 


S 


pmola. 


Ins. 


108 
340 


186 
.  514 
.  373 
.  178 
.  486 
.  394 

265,  310 
3,  176,  340 

318,  321 
.  461 
.  162 
.  170 
39,  138 
.  386 
.  277 
.  329 
nk  V. 

452,  500 
.  144 
.  502 
.  357 
.  88 
.  220 
.     496 

391,395 
.  333 
.  186 
48,  54 


Mills  V.  Osmond, 
Mina,  The, 
Minerva,  The,     . 
Miston  V.  Lord, 

188,  190,  266,  251,  252,  478,  482 
Mitchel  V.  Ede,  .        .        .467 

Montgomery  v.  Ship  Abby  Pratt,  313 
V.  Wharton,  .     184 


Moody  V.  Buck, 
Moore  v.  WiL^on, 
Moorsom  v.  Kymer,    . 
Morris  v.  Cornell,        .  45, 

V.  Robinson,    . 
Morrison  v.  Davis, 

V.  M'Fadden, 
Morse  v.  Slue,     . 
Mott  V.  Laraway, 
Mottram  v.  Ileyer, 
Muddle  V.  Stride, 
Muldon  V.  Whitlock,  . 
MuUoy  V.  Racker, 
Mumford  v.  The  Com.  Ins.  Co., 

246,  247,251,496 

V.  Nicoll,     .        .       ^.     380 

Munro  V.  Almeida,      .         .     173,178 

Murfree  v.  Redding,  .         .         .     161 

Myers  v.  Baymore,     .         .     259,  267 

V.  The  Harriet,        .        .     258 


356,  389 

462,  464 

503,  507 

90,  97,  150 

.  259 

.  304 

.  305 

266,  291 

.  218 

528.  531 

.  263 

375 

427 


372, 


TABLE    OF    CASES. 


XXVll 


N. 

Nancy,  The, 

Nantucket  Steamboat  Co., 
Natchez  Ins.  Co.  v.  Stanton, 
Nathan  v.  Giles, 
Nathaniel  Hooper,  The, 

318,  478,  483, 
Naylor  V.  Dennie,       .      521, 
Nellis  V.  Bradley, 
Neptune,  The,    .    65.75,80, 
Neptunus,  The, 
Nereide,  The,     . 
Nestor.  The, 
Neutralitet,  The, 
Newark,  Tlie.    . 
New  Draper.  The, 
Newhall  V.  Vargras,  524,525, 
New  Jersey,  The,       .     321, 
New  Jersey  Steam  Nav.  Co 
The  Merchants'  Bank, 

290,  437, 
Newman  v.  Walter,    . 
Nichols  V.  De  Woli,    . 
Nicholson  v.  Willan,  . 
NicoU  V.  .Mumford, 
Nimrod,  The,  50,65,  66,  84, 
Ninetta.  The, 

209,  218,  303,  454,  455, 
North  America,  The, 
Northern  v.  Williams, 
Northey  v.  Crags, 
Nostra  Signora  de  los  Dolore 


464, 

485, 
528, 

398, 

228, 


214, 
184, 
527, 
322, 

,  V. 

439, 
424, 
164, 

357, 
144, 

485, 

27*4, 

s, 
176, 


338 
459 
239 
465 

486 
529 
520 
409 
229 
194 
341 
226 
215 
365 
534 
399 


441 
425 
451 
437 
358 
145 

509 
366 
279 
529 

178 


O. 


Ogden  V.  Orr,     . 

, 

133 

Ogle  V.  Atkinson, 

. 

467 

Oh!  V.  Eagle  Ins.  Co., 

,                , 

357 

Orange  County  Bank  v. 

Brown, 

432,  433, 

434 

Ornc  V.  Townsend,     . 

133,  144 

1.54 

Orozirnho,  The  Ship,  . 

.      1.50, 

1.52 

Osirandcr  v.  Hrown,  . 

.     274. 

275 

Otis,  'Ihe,    . 

.  59,  68.  92 

Oii.sion  V.  Ilohden, 

370 

Owners  of  Three  I3rig8, 

'liic,    '. 

176 

Pacific,  The.  2H3,  425,  473,  475,  476 
Po(  ktird  V.  The  Louisa,  .  .  310 
Pocket,  The  Ship, 

267.269,321,  322,  .505 

Pninc  V.  Col.  Ins.  Co.,        .         .     242 

Palmer  v.  DaviH,  .  .     162 

V.  I.orillard,     .      258,484,485 

Paragon,  'I'hr-, 

166,  199,  206,  208,  210,  293,  339 


n, 


Pardee  v.  Drew, 
Parker  v.  James, 
Parry,  Ex  parte,  . 

V.  The  Peggy, 
Parson  v.  Watson, 
Parsons  v.  Hardy, 
Patrick  v.  Ludlow, 
Patterson  v.  Chalmers, 
Patton  V.  fTurney, 

V.  Magrath, 

V.  .M' Grain, 

V.  The  Randolph 
Peggy,  The, 
Peixotie  v.  M'Laughl 
Pelayo  v.  Fo.x,     . 
Pelican,  The, 
Penoyer  v.  Hallelt, 
Perkins  v.  Hill,   . 
Perry  v.  Osborne, 
Peter  v.  Beverly, 
Peters  v.  Ballister, 

V.  Warren  Ins 
Petrel,  The, 
Pettingill  v.  Dinstnore 
Phcbe;  The, 
Phillips'  Case,     . 

V.  Headlam, 
V.  Ledley, 
V.  Puringion, 
V.  Scattergood, 
Phillmorc  v.  Barry, 
Pluxni.x,  The, 
I'hyn  V.  Royal  Ins.  Co 
Pickard  v.  Sears, 
Pickering  v.  Holt, 
Pickman  v.  Woods, 
Pierce  v.  Pation, 
Pinney  v.  Wells, 
Pinto  V.  Atwater, 
V.  Barkley, 
Pitman  v.  Hooper, 
Pitt,  The,    . 
Plantamour  v.  Staples, 
Poole  V.  the  Protection  Ins 


1S2, 


Co. 


169, 


.     432 

.     302 

.     381 

.     332 

.     241 

.     304 

233,  234 

164,  356 

.     386 

.     166 

300 

380 

361 

432 

518 

40 

517 

498 

348 

375 

170 

.     270 

.     359 

.     106 

166,  168 

.     141 

2.  204,  419 

.     391 

.     357 

.     335 

.     539 

.     345 

.     110 

.     454 

.     162 

.     502 

.       82 

.     502 

.     511 

.     296 

324,  491 

.     360 

.     288 

Co., 

,  257,  261 
V.  Nickerson, 

162,   181,  258,259,  267,  268 
Porcupine,  The,  .         ...       55 

Porter  V.  Andrews,  .  .  66,67 
Pcjricr  V.  Curry,  .         .         .     166 

I'oriland  Bank  v.  Stubbs, 

162,  395,  454 

Post  V.  Robertson,      .         .         .     512 

Potter  V.  Lansing,        .         .         .     462 

V.  Sull'olk  Ins.  Co.,  .     296,309 

Powell  V.  Firemen's  Ins.  Co.,  The, 

238 
V.  Laylon,        .         .         .     3H(> 
Powers  V.  Daveiii)ort,  .         .     303 

Pray  v.  Siinson.  .  .  80,  81,  82,  154 
Prondcrirnst  v.  Compton,  .  .  428 
Prince  (Jcorfic,  The.  ...  55 
Privateer  iJevcngr,  The,  .  177,  183 
Propeller  Gcncscc  Chief,  The, 

317,  335,  408,  425 


Pope 


.XXVIU 


TABLE    OF    CASKS. 


Proprietors  of  Trent  and  Mersey 

Nav.  Co.  V.  Wood,  .         .  2CC> 

Prosper,  'I'lie,      .|       ■  •         •  489 

froiecior,  The,  .         .  -109,  410,  421 

Purviance  v.  Angus,   .  .         .  35 

Putnam  v.  'I'illoison,  .  .        .  i'>0 

V.  Wood,        .  .        .  198 


R. 

Racehorse,  The, . 

Ramsay  v.  Allegre,     . 

R;ipid,  The, 

Raihlinrne  v.  Neal,     . 

Read  v.  Com.  Ina.  Co., 

Rebecca,  The.   KiG,  1G7, 

Reed  v.  Canfield,  75 

V.  Chapman, 
V.  Dick.       .       198, 

Reeside,  The. 

208,  209,  214, 

Reeve  v.  Davis,  . 

Retina  v.  M'Gregor,  . 

Reid  V.  While,    . 

Relfv.  The  Maria,      . 

Rex  V.  Hastings, 

Reynard  v.  Brecitnell, 

Reynolds  v.  Toppan, 

Rice  V.  Shute,     . 

Rich  V.  Coe, 

v.  Lambert, 

Richards  v.  Gilbert,    . 

Richardson,  Ann  D.,  Th 

Richardson  v.  Maine  Ins, 

Richmond.  The, 

Richmond  Turnpike  Co. 
derbelt,     . 

Ring  v.  Franklin,      391, 

Ripley  v.  Scaife, 

Rising  Sun,  The, 

Ritchie  v.  Atkinson,    . 
V.  Bousfield,    . 

Roath  V.  Thompson,  . 

Roberts  v.  Holt,  . 

Robertson  v.  Bethune, 
V.  Clark,  . 
V.  Smith,    . 

Robinson  v.  Baker,     . 
V.  Cushing, 
V.  Jones, 
V.  Marine  Ins. 

Rogers  v.  Thomas, 

Rohl  V.  Parr. 

Rosalie  and  Betty,  The, 

Ross  V.  Johnson, 

V.  Ship  Active,   . 

Rowley  v.  Bigelow,    . 

Royal  Sa.xon,  The, 

Ruggles  v.  Buc'knor,  . 

Runguisl  V.  Diichell,  . 

Rutherford  v.  M'Gowcn 

Rymer  v.  Sowercropp, 

Ryberg  v.  Snell, 


485, 

304, 

206,  266, 

,  84,  158, 

.   84, 

219,  235, 

215,  295, 
372, 

161, 

215, 

e, 

Co.,  223, 
151, 
Van- 


393,  394, 
199, 


486 
474 
229 
312 
303 
341 
159 
154 
244 

297 
317 
123 
387 
143 
124 
60 
1C9 
384 
318 
217 
201 
479 
227 
1.52 


175 
396 
497 
227 
512 
422 
378 
503 
494 
258 
385 
499 
384 
270 
515 
521 
310 
1% 
281 
267 

453,  .524,  535 
315 
501 
303 
201 
525 
519 


o.. 


519, 
265, 


S. 


Sahira,  The, 
Salters  v.  Gccan  Ins. 


Co. 


319 


."■ialtus  V.  Everett, 
Sampson  v.  Smith, 
Santisfiima Trinidad,  The, 
Sarah  ("hristina,  The, 
Saratoga,  The,    . 
Saville  v.  Champion,  . 
Sawyer  v.  Joslin, 
Scaife  v.  Tobin,  . 
Scheiflelin  v.  Ilarvev, 

35, '183,  246,  2.56,  266 

v.  N.  Y.  Ex.  Ins.  Co.,  190 

Schelter  V.  York, 

Schormcrhorn  v.  Soines, 

Scholfield  v.  Bell,       . 


246 

,256, 

257 
499 

94 

,  96 

e,. 

, 

223 

226, 

227 

132, 

133 
281 

519, 

528, 

531 
500 

482, 


357,  358, 


89 
372 
523 
485 
372 
258 
381 
185 


Scott  v.  Libby. 
Scoitin  v.  Stanley, 
Scull  v.  Biddlc,    . 
Seabrtwk  v.  Rose, 
Sea  Renter,  The, 
Searle  v.  Scovill, 

190,  246,  247,  256,  267,  4% 
Sells  v.  Hoare,    .        .        .        .304 

Senat  v.  Porter 284 

Seneca.  The,  .  .  .  .369 
Seton  v.  Low,  ....  223 
Shatzell  v.  Hart,  .         .         .502 

Shaw  v.  The  York,  &c.,  Co.,  .  439 
Shepherd  v.  De  Benarles,  .  .  504 
Sheppard  v.  Taylor,  .  .  322,  323 
Sherwood  v.  MTniosh,  .  .  151 
Shipton  v.  Thornton. 

191,  245,  246,  496 


Shirley  v.  Steamer  Bribe, 
Shore  v.  Bcniall, 
Shnliz  V.  Ohio  Ins.  Co 
Siff  ken  v.  May,  . 
Silva  V.  Low, 
Siordett  v.  Brodie, 
V.  Hall,  . 
Sisters,  The, 
Skidmore  v.  Derdoiiy, 
Skolfiuld  V.  Potter, 
Skrine  v.  Sloop  Hope, 
Slowcum  V.  Mayberry, 
Slubcy  V.  Heywood, 
Smith 


523, 


V.  Home,  . 

V.  Martin, 

V.  Scolt,    . 

V.  Shepherd, 

V.  Treat,  . 
.Snee  v.  Prescott, 
Snell  V.  Rich.  . 
Snowden  v.  PhcnnixIns 
Soldergreen  v.  Flight, 
Solon,  The  Sloop, 
Souter  V.  Baymore, 

219,  234,235,  303,485 
Southcote's  Case,  .  .  .  437 
SpaflTord  v.  Dodge,      .        .        .497 


356 

203 

247 

527 

198 

.    427 

.     310 

.     365 

.     223 

323,  324,  347 

.    371 

.     178 

.     532 

.    436 

190,258,  259 

.     308 

.     297 

93,  143,  144 

.     462,  520 

.     409 

Co.,  234,  235 

.     282 

266,335,341 


TABLE    OF    CASES. 


XXIX 


Spartan,  The  Brig, 

321,322,323,324,473,505 
Speering  v.  De  Grave,  .  .  389 
Spence  v.  White,  .  .  .503 
Spurr  V.  Pearson,  .  .  .  344 
Sproatv.  Donnell,  .  .  .348 
Siaadl  V.  Emliden,  The,  .  .  226 
St.  Arriaiul  v.  Lizardi,  .  .  431 
Stanton  v.  Eager, 

450,  463,  464,  524,  542 

Star,  The 400 

State  Rights,  The,       .         .        .175 
Steamboat  Orleans  v.  Phccnix, 

321,322,359 
Stephenson  v.  Hart,     .        .        .     463 
Stewart  v.  Hall,  .        .        .    372,  388 
V.  Tenn.  M.  &.  F.  Ins. 
Co., 
St.  Jago  de  Cuba,  The, 
St.  Jean  Babtista, 
Stockton,  The,    . 
Stockton  V.  Frey, 
Stokes  V.  Saltonstall, 
St.  Oloff',     .... 
Stone  V.  Gent,     . 
V.  Godet, 

V.  Ketland,         •      35, 
Stoveld  V.  Hughes, 
Strachan  v.  The 

&.  Co.,     . 
Strelly  v.  Winson, 
Strong  V.  Nalally,       .     274, 


239 
339 

.  176 
.  174 
.  428 
428,  435 
.  338 
180 
344 
182 
540 


343, 
175, 


Stubbs  V.  Lund, 


Trustees  of  Kno.\ 

.     .531 

.     389 

279,  280 


519,  533,  534 


Tabcrv.  U.  S.,  . 

Toggard  v.  Loring,      .         .     161, 

Tafeiit,  The  Barque,  . 

'J'anner  v.  Scovcll,       .         .     532, 

Tate  V.  .Aleek,     .... 

Thames,  The 

Theresa  Barrila,  The, 
Thomas  JeHcrson,  The,     . 
Thomas  v.  Lane,        .      102,  157, 
Thompson  v.  IJiisfli,  .        .     149, 

V.  Hoskins, 

V.  Fitid'r. 

V.  Oakland,  The  Ship, 
46,  r,i 

V.  Philadelphia,  The, 
57, 
'I  homsoii  V.  Davenport, 

V.  Mtitnilion, 
Thorn  v.  IlickK, 
Thortidikc  v.  Iloardinaii, 

V.  Do  Wolf. 
Thome  v.  While,  fH,  90,  98,  143, 
ThiirHion  v.  Col.  Ins.  Co., 
Tiiion,  'I'he, 
Todd  V.  Ritchie, 
'I'otie  V.  rJoodrirh, 
Towie  V.  Ketlcll, 
'J'ransil,  The, 


45 
348 

72 
.533 
■28 1 
174 
282 
315 
347 
1.57 
384 
373 

,  53 

314 
373 
348 
391 
212 
357 
347 

no 
3(;o 

1(19 

517 
409 


Trask  v.  Duval,  .        .        .     502,  507 
Treadwell  v.  Union  Ins.  Co., 

246,251,257 
Tribune,  The  Schooner, 
Triumpli,  Tiie,   . 
Tucker  v.  Buffington, 
391, 
V.  Humphrey, 
Turner  v.  Burrows,     . 
Turner's  Case,    . 
Twee  Jud'rowen,  The, 
Two  Friends,  The,     . 


, 

, 

164 

• 

• 

315 

392, 

395. 

396 
540 

377, 

378 
88 

, 

228 

, 

424 

S6,  87, 

'.     112, 
.       66, 


U. 

United  States  v.  Alden, 
V.  .Ahnida, 
V.  Amedy, 
V.  Ashton, 
V.  Barker,     . 
V.  Casscdy.  . 
V.  Coflin,       .     140, 
V.  Duval, 

V.  Forbes,  119,  126, 
V.  Freeman,  87 

V.  Furlong,  . 
V.  Haines,  . 
V.  Hamilton, 
V.  Ik'innier, 
V.  Holmes,  . 
V.  Hunt,  .  86, 
V.  Johns, 

V.  Kelly,        .     124, 
V.  Klintock, . 
V.  Lawrence, 
V.  Lynch, 
V.  Matthews, 
V.  Morrison, 
V.  Netclicr,  . 
V.  Palmer,    . 
V.  Peterson,  94 
V.  Ruggles, 

92,  96, 
V.  Savage,    . 
V.  Sharp, 
V.  Smith, 

88,  98,  116,  125, 
V.  Stevens,  . 
V.  Taylor,  100,  103, 
V.  Thompson, 
V.  Tully,       . 
V.  Wicklium, 
V.  Wilder,    . 
V.  Winn, 

United  Ins.  Co.  v.  Scdtl,  267,272, 

Urquhart  v.  Barnard, 

V. 

Vnllejo  V.  Cowper, 
Vandivrr  v.  'I'ilgliman, 
Van  Syrkel  v.  i')wing, 
Van  Zellcr  v.  .Saiider«, 


115, 
,  %, 

141, 


103 
118 
113 
122 
126 
128 
142 
144 
412 
,  98 
115 
125 
104 
121 
115 
100 
112 
125 
115 
121 
412 
128 
127 
MO 
116 
116 

331 
121 
137 

126 
104 
157 
122 
117 
'.II 
343 
)03 
:',H9 
303 


no 

323 
204 
503 


XXX 


TAHLE     OF    CASES. 


Vcncock  V.  MTnll,    . 

, 

. 

55 

Vcriinril  v.  Hudson,    . 

208, 

209, 

210 

Von  110  V    Jewell, 

, 

:>i'.) 

Vibilia.  The.        . 

, 

, 

144 

Vigilantiii,  The,  . 

, 

■M] 

Violett  V.  Siettiiiiiis,  . 

280, 

482 

Volunteer,  The  Schooner, 

U6 

,  '280 

484 

501 

Vrow  Judith,  The,      . 

18-> 

Anna  Catharina, 

The, 

. 

4;)0 

w. 


Walcott  V.  Eacle  Ins.  Co.,  .  41)2 
Waldo,  The,  KIS.  171,  l!)9,20fi,208,  20'.) 
Walker  v.  Cassawny,  .     456,  49!) 

V.  Mail  land,   .         .         .     203 
Walley  v.  .Moiiigonierv,     .        .    4(i() 

169,  212,  471 

519,  538,  542 

.     504 

163,  1G9,  170 

.     277 

.     454 

.     360 

56,  59,  72,  74 

Merchants'    Louis. 

%,  310 


Walter  v.  Brewer 
V.  Ross,    . 
Ward  V.  Felt  on, 

V.  Green,   . 
Wardell  v.  Mourillyan, 
Warden  v.  Greer, 
Warrior,  The, 
Washington,  The, 
Waters    v. 
Ins.  Co., 
Watson  V.  Duykinck,  .     443,  473,  491 

Weal  V.  King 386 

Webh  V.  Fierce,  .         .     348,  352 

Weed  V.Saratoga  &S.R.R.  Co.,  434 

Weir  V.  Aberdeen,      .         ,         .     199 

Welch  V.  Hicks,  .         .         .     514 

Wendover  v.  Hodgeboom,  .     391 

Wentworih  v.  Ouihwaite,  .     526 

Weston  V.  .Minot,     220,  272,  498,  512 

V.  Penniman,  .         .     396 

Whiiall  V.  Brig  M'Henry,  .         .     200 

White  V.  Baring,         .         .         .322 

V.  Kearney,       .        .         .     275 

V.  Wilks,  .        .         .     540 

Whitehead  v.  Anderson,    .         .     537 

Whitenian  v.  The  Neptune,       .     317 

Whitesides  v.  Russell,        .     245,  457 

Whitney  v.  Eager,      .        .        .     347 

Firemen's  Ins.  Co.,     .    258 


Wickham  v.  Blight,  .  .  .  55 
Wiggiii  V.  Aniorv,  .  .  .110 
Wilcox  V.  rarinelee,  .  303,311,456 
\Viilit>lniiiia  Fleonora,  The,  .  48(! 
Willard  v.  Dorr,  .         .      55,  193 

William,  The,  .  .  .  297,419 
William  Harris,  The,  84,  92,  345,  346 
William  Henry,  The  Brig,  .     198 

Williams  V.  Bo.x  of  Bullion,        .     236 
V.  Grant, 

293,  295,  296,  297,  303 

V.  Nichols,    .     194,  213,  272 

Willings  V.  Blight,       .     246,  362,  368 

Willouglibv  V.  15ackhoiise,  .     304 

Wills  V.  The  St.  Nav.  Co.,         .     439 

Wilnisliurst  v.  Bowker,      .         .     4f)7 

Winihrop  v.  The  Union  Ins.  Co.,     234 

Wilson  V.  Belvidere,  The,  .     157 

Wilson  V.  Brown,        .         .         .     275 

V.  rinirchnian,        .     285,  463 

V.  Mary,   The,   90,92,  93,  135 

Wolf  V.  Summers,       .         .     283,444 

Wolfe  V.  Myers,  .         .         .     454 

V.  Oder,  The,.         .         .       51 

Wood  V.  Nirnrod,  The, 

46,  150,  151,  152,  153 

V.  Roach, ....     542 

Woodrop  Sims,  Tlie,  .         .     174 

Wright  V.  Wilcox,       .         .         .175 

Wyatt  V.  IVlarcjuis  of  Hertford, 

The, 375 

Wysham  v.  Bosser,     .        .        .    329 


Yates  V.  Brown, 
V.  Duff,      . 
V.  Railston, 

Young,  Ex  parte, 
V.  Fewson, 

York  V.  Greenough, 


.  4C9 
.  427 
.  181 
358,  380 
428,  431 
.  499 


Zachrisson  v.  Ahman,  .  456,  466 
Zephyr,  The,  .  .  .  .267 
Ziele  V.  Ex'rs  of  Campbell,        .    385 


PART   I. 


THE 


LAW  OF  SHIPPING. 


CHAPTER  I. 

OF  THE  PERSONS  ExMPLOYED  IN  THE  NAVIGATION 
OF  MERCHANT  SHIPS. 

1.  The  maritime  law,  with  providence  and  fore- 
cast, has  assigned  the  powers,  defined  the  rights,  and 
prescribed  the  duties  of  that  Large  and  meritorious 
class  of  the  citizens  of  every  maritime  state,  who  are 
employed  in  the  navigation  of  its  merchant  vessels. 
The  refinements  of  modern  civilization  have  miti- 
gated or  abrogated  many  of  its  rules,  reducing  in 
many  instances  the  power  of  the  master  on  the  one 
hand,  and  conferring  on  the  other,  additional  and 
superior  privileges  upon  the  mariner.  The  edifice 
has  been  enlarged  and  improved,  but  the  original 
foundation  remains.  Higher  praise  could  not  be  be- 
stowed upon  the  practical  skill  of  comparatively  rude 
architects,  than  is  indirectly  expressed  in  this  signi- 
ficant fact. 

2.  In  the  appointment  of  the  master,  the  law  puts 
no  restraint  upon  the  shipowners,  great  and  exten- 
sive and  important  as  are  his  powers  and  duties.' 

'  The  reader  will  find  a  very  interesting  treatise,  in  the  "Sea 
Laws,"  p.  442,  upon  owners,  masters,  and  mariners.     It  is  pro- 

2 


34  THE  LAW  OF   siiirriNG. 

By  holding  them  responsible  for  his  conduct,  the  law 
insures  care  and  circumspection  in  his  selection.  The 
master  of  a  vessel  is  bound  to  his  owners,  and  he 
and  the3'  to  every  one  who  may  be  afiected  by  his 

fesscdly  taken  from  Molloy's  work  (Z>e  Jure  Maritim')),  and  tho 
niaritiinc  codes.  In  the  third  article  it  is  said:  "The  persons 
ordinary  for  sailing  in  ships,  have  divers  denominations;  the  first, 
which  is  the  master,  is  known  to  us  and  most  nations,  both  now 
and  of  old,  and  especially  by  the  lloman  laws,  is  termed  navicula- 
rius  or  maghter,  or  exercito  navis,  in  English  rendered  master  j 
in  the  Teutonic,  skipper;  by  the  Grecians,  navarchus  or  nau- 
clerus  ;  by  the  Italians,  j)a(i'ono.  But  this  is  only  to  those  vessels 
that  are  ships  of  burden  and  carriage :  for  in  ships  of  war  the 
principal  officer  is  commonly  called  commander  or  captain.  The 
next  in  order  of  office  to  the  master,  is  he  who  directs  the  ship  in 
the  course  of  her  voyage  ;  by  the  French  called  pi7o<e,  by  the  Eng- 
lish pilot,  and  by  the  Flemings  steersman,  by  the  llomans  guher- 
nator,  by  the  Italians  nocliicro,  irillotto,  and  navarchua ;  and  the 
third  is  esteemed  the  master's  mate  or  companion,  especially  if 
the  master  be  steersman  himself;  of  old,  by  the  Grecians  and 
llomans  called  prorcta  ;  his  charge  is  to  command  all  before  the 
mast. 

"  His  successor  in  order  is  the  carpenter  or  shipwright,  by  these 
two  nations  of  old  called  naupegus  and  cnlajyhates.  From  the 
loins  of  one  of  that  rank  sprang  that  great  emperor,  Michael,  sur- 
named  Calaphates,  who  denied  not  to  own  the  quality  of  his  father 
among  his  regal  titles.  The  very  name  calaphates,  the  Venetians 
and  most  of  the  Italians  still  use  to  this  day. 

''  The  next  who  succeeds  in  order,  is  he  who  bears  the  charge 
of  the  ship's  boat,  by  the  Italians  called  hraclilere,  and  by  the 
Grecians  and  llomans  carahita,  from  carahus,  which  denotes  the 
boat  of  a  ship. 

"  The  sixth  in  order,  especially  in  ships  of  burden,  is  the  clerk 
or  purser,  by  the  Italians  called  scrivano,  whose  duty  is  the  re- 
gistering and  keeping  tho  accounts  of  all  received  in  or  delivered 
out  of  the  ship;  fur  all  other  goods  that  are  not  by  him  entered, 
or  taken  into  charge,  if  they  happen  to  be  cast  overboard  in  a 
storm,  or  are  stolen  or  embezzled,  the  master  answers  them  not, 


OF  THE  PERSONS  EMPLOYED  IN  SHIPS.   35 

acts,  for  his  skill  and  care  in  the  management  of  the 
vessel  under  his  command.'  The  master  is  answer- 
able civilly,  as  well  for  an  error  in  judgment  as  for 
a  fault  of  the  heart.  The  law  requires  of  him  rea- 
sonable care,  attention,  prudence,  and  fidelity;  and 
if  any  misfortune  or  mischief  ensues  from  the  want 
of  them,  either  in  himself  or  his  mariners,  he  is  re- 
sponsible in  a  civil  action.''  The  owners  of  the  ves- 
sel, being  answerable  in  damages  for  the  misconduct 
of  the  master,  he  as  the  actual  malfeazor  is  accountr 
able  over  to  them. 

3.  The  maritime  law  regards  the  sailor  as  a  citizen 
of  the  world.  His  home  and  employment  are  em- 
phatically upon  the  deep.  In  peace,  and  unless  pro- 
hibited by  his  own  sovereign,  he  may  engage  his 
services  in  any  vessel  and  of  any  nation.  Wherever 
he  sails,  and  under  whatever  flag,  he  is  never  beyond 

there  being  no  obligation  on  him  by  law  for  the  same;  his  duty  is 
to  unlade  by  day,  not  night. 

"The  seventh  is  a  most  necessary  officer,  called  the  cook. 

"  The  eighth  is  the  ship's  boy,  who  keeps  her  continually  in 
harbors,  called  of  old  by  the  Grecians  namphyhikes,  by  the  Ita- 
lians ijuardino ;  these  persons  are  distinct  in  offices  and  names, 
and  are  likewise  distinguished  in  hires  and  wages.  The  rest  of  the 
crew  arc  under  the  common  name  of  mariners,  by  the  llomans 
called  nautse;  but  the  tarpaulins,  or  those  youths  or  boys  that  arc 
apprentices,  obliged  to  the  most  servile  duties  in  the  ship,  were  of 
old  called  mcxoiianfx." 

*  Purviancc  v.  Angus,  1  Dall.  11.  180. 

« Id.  Stone  V.  Ketland,  1  Wash.  C.  C.  R.  142. 

"  Purviancc  v.  Angus,  supra.  See,  also,  as  to  the  master's  lia- 
bility, Atkyns  v.  IJurrows,  1  Peters'  Adm.  R.  245;  Dusar  v. 
Murgatroyd,  1  Wash.  C.  C  R.  13;  Schciffclin  v.  Ilarvcy,  G  John. 
R.  170. 


36  THE     LAW    OF    SHIPPING. 

the  protection  of  law.  In  war,  however,  neutrals 
must  look  well  to  the  national  character  of  the  sea- 
men employed  on  board  their  ships ;  because  belli- 
gerents may  deem  it  proper,  and  in  accordance  with 
the  principles  of  international  law,  to  pronounce  upon 
the  national  character  of  the  ship  from  the  national 
character  of  the  crew.  By  the  prize  law  of  France 
and  Denmark,  if  the  officers  and  two-thirds  of  the 
crew  of  a  neutral  vessel  are  of  the  enemy's  country, 
she  thereby  loses  her  neutral  character,  and  is  liable 
to  capture  and  condemnation.  So,  too,  seamen  of  a 
neutral  country,  entering  the  merchant  service  of  a 
belligerent,  will  have  their  national  character  deter- 
mined by  that  of  the  vessel  in  which  they  are  found. 

3  a.  Congress,  during  the  last  war,  thought  proper, 
by  an  act  which  has  always  been  practically  inope- 
rative, to  declare  that,  from  and  after  the  termination 
of  the  war,  it  should  not  be  lawful  to  employ  on 
board  any  of  the  public  or  private  vessels  of  the 
United  States,  any  person  or  persons  except  citizens 
of  the  United  States,  or  persons  of  color,  natives  of 
the  United  States;  nor  so  to  employ  any  natu- 
ralized citizen  of  the  United  States,  unless  such  citi- 
zen shall  produce  to  the  commander  of  a  public 
vessel,  if  to  be  employed  on  board  such  vessel,  or  to 
a  collector  of  the  customs,  in  other  cases,  a  certified 
copy  of  the  act  by  which  he  shall  have  been  natur- 
alized, setting  forth  such  naturalization  and  the  time 
thereof.'' 

*  Jacobson's  Sea  Laws,  Book  ii.  chap.  2j  2  Brown's  Civ.  and 
Adm.  Law,  515;  The  Frederick,  5  llobinson's  Adm.  B.  8;  The 
Embden,  1  Id.  16 ;  The  Vigilantia,  Id.  1 ;  Curtia's  iMerchant  Sea- 
men, p.  7. 

2  Act  U.  S.,  March,  1813,  ch.  184,  sec.  1,  2.     Section  3  of  the 


OF    THE    PERSONS    EMPLOYED    IN"     SHIPS.      37 

4.  It  is  also  provided  by  the  same  Act,  that  from 
the  date  of  its  taking  effect,  no  seaman  or  other  sea- 
faring man,  not  being  a  citizen  of  the  United  States, 
shall  be  admitted  or  received  as  a  passenger  on  board 
of  any  public  or  private  vessel  of  the  United  States, 
in  a  foreign  port,  without  permission  in  writing  from 
the  proper  officers  of  the  country  of  which  such  sea- 
man or  seafaring  man  be  subject  or  citizen/  The 
penalty  for  a  violation  of  the  provisions  of  this  Act 
by  the  commander  of  a  public  vessel,  is  the  forfeiture 
and  payment  of  one  thousand  dollars,  for  each  person 
thus  unlawfully  employed  or  admitted  on  board  such 
vessel.  And  if,  contrary  to  the  prohibitions  of  the 
Act,  any  person  shall  be  employed  or  received  on 
board  of  any  private  vessel,  the  master  or  commander, 
and  the  owner  or  owners  of  such  vessel,  knowing 
thereof,  shall  respectively  forfeit  and  pay  five  hun- 


same  act  further  provides,  That  in  all  cases  of  private  vessels  of 
the  United  States,  sailing  from  a  port  in  the  United  States  to  a 
foreign  port,  the  list  of  the  crew,  made  as  heretofore  directed  by 
law,  shall  be  examined  by  the  collector  for  the  district  from  which 
the  vessel  shall  clear  out,  and  if  approved  of  by  him,  shall  be  cer- 
tified accordingly.  And  no  person  shall  be  admitted  or  employed 
as  aforesaid,  on  board  of  any  vessel  aforesaid,  unless  his  name 
shall  have  been  entered  in  the  list  of  the  crew,  approved  and  certi- 
fied by  the  collector  for  the  district  from  which  the  vessel  shall 
clear  out  as  aforesaid.  And  the  said  collector,  before  he  delivers 
the  list  of  the  crew,  approved  and  certified  as  aforesaid,  to  the 
captain,  master,  or  proper  officer  of  the  vessel  to  which  the  same 
belongs,  shall  cause  the  same  to  be  recorded  in  a  book  by  him  for 
that  purpose  to  be  provided,  and  the  said  record  shall  be  open  for  the 
inspection  of  all  persons,  and  a  certified  copy  thereof  shall  be  ad- 
mitted in  evidence  iji  any  court  in  which  any  question  may  arise 
under  any  of  the  provisions  of  this  act. 
'  Ibid.  8cc.  5. 


38  THE     LAW    OF    SHIPPING. 

dred  dollars  for  such  person  thus  unlawfully  employed 
or  received  in  any  one  voyage ;  which  sum  or  sums 
shall  be  recovered,  although  such  seaman  or  person 
shall  have  been  admitted  and  entered  in  the  certified 
list  of  the  crew  aforesaid,  by  the  collector  for  the  dis- 
trict to  which  the  vessel  may  belong/  Nothing  con- 
tained in  the  Act,  however,  is  to  be  construed  so  as 
to  prohibit  an}^  commander  or  master  of  a  public  or 
private  vessel  of  the  United  States,  whilst  in  a  foreign 
port  or  place,  from  receiving  any  American  seaman 
in  conformity  to  law,  or  supplying  any  deficiency  of 
seamen  on  board  such  vessel,  by  employing  American 
seamen,  or  subjects  of  such  foreign  country,  the  em- 
ployment of  whom  shall  not  be  prohibited  by  the 
laws  thereof.^ 

But  as  we  have  already  observed,  the  provisions 
of  this  Act  are  practically  inoperative,  and  for  the 
reason  that  they  are  to  have  no  effect  with  respect 
to  the  employment  as  seamen  of  the  subjects  or 
citizens  of  any  foreign  nation  which  shall  not,  by 
treaty  or  special  convention  with  the  government  of 
the  United  States,  have  prohibited  on  board  of  her 
public  and  private  vessels  the  employment  of  native 
citizens  of  the  United  States,  who  have  not  become 
citizens  or  subjects  of  such  nation.^  No  nation,  that 
I  am  aware  of,  has  thus  excluded  our  seamen  from 
employment  on  board  its  vessels,  and  until  it  shall 
be  done,  the  Act  is  nugatory. 

5.  By  another  Act,'  anterior  to  the  one  we  have 
considered,  it  is  made  the  duty  of  our  consuls  and 

» Ibid.  sec.  7,  8.  =  Ibid.  sec.  9.  ^  ibid.  sec.  10. 

*  Act  of  1803,  Ch.  62 ;  known  as  the  Consular  Act. 


OF  THE  PERSONS  EMPLOYED  IN  SHIPS.   39 

vice-consuls  to  provide  for  destitute  seamen  within 
their  districts,  and  it  requires  all  masters  of  Ameri- 
can vessels  bound  to  some  port  of  the  United  States, 
on  request  of  our  consuls  and  vice-consuls,  &c.,  to 
take  such  seamen  on  board,  and  transport  them  to 
the  United  States  upon  certain  terms  and  conditions 
prescribed  by  the  Act,  and  it  inflicts  upon  the  mas- 
ters a  penalty  of  $100  for  refusing  to  do  so.  It  has 
been  held,  that  a  foreigner  employed  as  a  seaman  in 
a  merchant  ship  of  the  United  States,  is  to  be  deemed 
"  a  mariner  and  seaman  of  the  United  States,"  within 
the  language  and  policy  of  this  Act.^ 

By  the  Act  of  1817,2  no  fishing  bounty  is  allowed 
to  vessels  engaged  in  the  fisheries,  unless  the  officers 
and  tliree-fourths  of  the  crew  are  citizens.  And  ves- 
sels engaged  in  the  coasting  trade  must  pay  a  foreign 
tonnage  duty,  unless  the  officers  and  three-fourths  of 

*  Matthews  v.  Offlcy,  3  Sum.  R.  115.  It  was  argued  in  this  case, 
that  foreigners  are  no  longer  to  be  considered  as  holding  the  cha- 
racter of  mariners  and  "  seamen  of  the  United  States,"  than  while 
they  actually  belong  to  a  ship  of  the  United  States  in  that  cha- 
racter. Judge  Story  thought  the  proposition  not  maintainable  in 
its  full  extent.  He  said  that  it  would  involve  great  inconveniences 
and  hardships,  and  be  repugnant  to  the  sound  policy  of  the  Act. 
"  It  seem.s  to  me,"  he  said,  "  that,  where  a  foreign  seanum  has 
once  acquired  a  domicil  in  the  United  States,  and  is  engaged  in 
our  mereliants'  service,  and  retains,  if  I  may  so  say,  the  habits  of 
that  service,  and  upon  every  discharge  from  one  ship  still  has  the 
animuH  rcvcrtcndl  fn  that  service  ami  ilnmicil,  he  must  be  ti'cated 
as  intending  to  retain  his  acf|uired  character  of  an  American  sea- 
man, and  his  acquired  American  domicil.  Some  overt  act  on  his 
own  part,  hucli  as  engaging  in  some  foreign  service,  or  resuming 
his  original  native  character,  ur  disowning  his  American  character 
and  domicil,  seems  to  me  indispensable  to  rebut  the  presumption, 
that  he  still  attaches  himself  to  the  American  service." 

"  March  1,  1817,  oh.  204,  sec.  3,  o,  (j. 


40  THE    LAT7    OF    SniTPING. 

the  crew  arc  citizens.  And  the  same  penalty  is  in- 
curred by  vessels  employed  in  foreign  trade,  unless 
their  ollicers  and  crew  in  the  same  proportion  are 
citizens.  It  is  observed  by  Mr.  Curtis'  that  these 
last  penalties  are  cumulative  upon  those  of  the  former 
Act;  so  that  masters  and  owners  shipping  foreign 
seamen  who  belong  to  countries  against  which  that 
Act  operates,  are  still  subject  to  the  penalty  of  five 
hundred  dollars  for  each  person. 

Foreigners  employed  on  board  of  vessels  subject 
to  these  acts,  for  a  purpose  not  directly  connected 
with  their  navigation,  are  not  to  be  deemed  part  of 
the  crew,  simply  because  they  now  and  then  pull  a 
rope,  or  assist  in  a  way  that  any  other  man  of  suffi- 
cient strength  and  activity  might  do.  Thus,  it  was 
held  by  Lord  Stowell,  that  foreigners  hired  to  take 
care  of  a  cargo  of  mules  on  board  a  British  ship, 
were  not  to  be  deemed  part  of  the  crew  within  the 
provisions  of  the  navigation  laws  requiring  British 
ships  to  be  manned  by  a  certain  proportion  of  British 
seamen.^  It  was  also  held  by  Lord  Stowell,  in 
another  case,  that  goods  imported  in  a  British  ship 
not  manned  and  navigated  according  to  law,  are  not 
liable  to  forfeiture,  if  the  imperfect  manning  of  the 
ship  was  a  matter  of  uncontrollable  necessity.^    The 

'  Merchant  Seamen,  p.  9. 

=  George  the  Third,  1  Dod.  Adm.  R.  311. 

3  The  Pelican,  2  Ibid.  194.  It  would  be  monstrous  if  the  com- 
mander  of  a  public  ship  were  hold  liable  to  the  statute  penalty,  by 
manning  her  contrary  to  the  provisions  of  the  statute,  in  a  case  of 
imperative  necessity.  livery  consideration  of  public  policy  and 
convenience  forbid  any  such  interpretation  of  the  law.  True, 
public  policy  and  convenience  neither  constitute  nor  overthrow 
the  law,  but  they  are  always  good  interpreters  of  what  is  doubtful ; 


OF    THE    PERSONS    E.AIPLOTED    IN    SHIPS.     41 

principle  of  these  decisions  is  equally  applicable  to 
the  provisions  of  our  acts.  Cases  of  absolute  necessity 
are  cases  of  unavoidable  disj)ensation. 


because  it  is  not  to  be  presumed  that  the  statute  was  either  blind 
to  public  consequences,  or  indifferent  about  them ;  that  it  either 
did  not  see  the  inconvenience,  or  meant  to  impose  it.  The  Swift, 
1  Dod.  Adm.  K.  320,  344. 


42 


CHAPTER   11. 

OF  STATUTORY  PROVISIONS  WITH  RESPECT  TO 

SEAMEN. 

I.  Of  the  Shipping  Articles. 
II.  Of  the  Seaworthiness  of  the  Vessel. 

III.  Of  the  Supplies  required  to  be  put  on  board. 

IV.  Of  the  Medicine  Chest. 


I.  OF  THE  SHIPPING  ARTICLES. 

6.  In  all  voyages  from  any  part  of  the  United 
States  to  any  foreign  port,  and  in  all  coasting  voy- 
ages from  one  State  to  any  other  than  an  adjoining 
State,  the  master,  before  proceeding  on  such  voyage, 
is  required,  by  Act  of  Congress,^  to  make  an  agree- 
ment, in  writing  or  print,  with  every  seaman  or 
mariner  on  board  (except  such  as  shall  be  apprentice 

'  Act  of  July  20th,  1790,  ch.  56,  see.  1.  It  was  held  by  Judge 
Ware,  in  the  case  of  the  Crusader,  Ware's  R.  437,  that  a  general 
coasting  and  trading  voyage,  in  which  the  vessel  goes  to  ports  in 
different  States  of  the  Union,  is  within  the  statute  requiring  the 
contract  to  be  in  writing;  and  that  if  a  seaman  is  shipped  for  such 
a  voyage,  without  any  limitation  of  time,  or  any  final  tcrmhms  of 
the  voyage,  either  party,  the  master  or  the  seaman,  may  put  an 
end  to  the  contract  at  pleasure,  provided  it  is  not  done  at  a  time 
and  under  circumstances  particularly  inconvenient  to  the  other 
party.     See  also  Curtis's  Merchant  Seamen,  39. 


OF  THE  SHIPPING  ARTICLES.       43 

or  servant  to  himself  or  liis  owners),  declaring  the 
voyage  or  voyages,  tenn  or  terms  of  time,  for  which 
such  seaman  or  mariner  shall  be  shipped. 

7.  If  he  fails  to  do  this,  he  forfeits  twenty  dollars 
for  every  such  seaman  or  mariner,  and  is  required  to 
pay  every  such  seaman  or  mariner  (for  the  whole 
voyage,  if  he  performs  it;  or,  if  not,  then  for  such 
time  as  he  continues  to  do  duty  on  board  the  ship) 
the  highest  price  or  wages  which  shall  have  been 
given  at  the  port  or  place  where  such  seaman  or 
mariner  shall  have  been  shipped,  for  a  similar  voy- 
age, within  three  months  next  before  the  time  of 
such  shipping,  and  such  seamen  or  mariners  not 
having  signed  such  contract  shall  not  be  bound  by 
the  regulations,  nor  subject  to  the  penalties  and  for- 
feitures contained  in  the  Act.  By  a  subsequent  and 
recent  Act,  it  is  declared,  that  all  shipments  made 
contrary  to  the  provisions  of  that  Act  and  other  Acts 
of  Congress,  shall  be  void,  and  any  seaman  so  shipped 
may  leave  the  service  at  any  time,  and  demand  the 
highest  rate  of  wages  paid  to  any  seaman  shipped 
for  the  voyage,  or  the  sum  agreed  to  be  given  at  his 
shipment. 1 

«  Act  of  July  20th,  1840,  chap.  23,  sec.  10.  By  the  Act  of  28th 
Feb.  1803,  it  is  provided,  That,  before  a  clearance  be  granted  to 
any  vessel  bound  on  a  foreign  voyage,  the  master  thereof  shall  de- 
liver to  the  collector  of  the  customs,  a  list,  containing  the  names, 
places  of  birth,  and  residence,  and  a  description  of  the  persons  who 
compose  his  ship's  company,  to  which  list  the  oath  or  affirmation 
of  the  captain  shall  be  annexed,  that  the  said  list  contains  the 
Dames  of  his  crew,  together  with  the  places  of  their  liiiili  and 
residence,  as  far  as  he  can  ascertain  them,  and  the  said  enllector 
shall  deliver  him  a  certified  copy  thereof,  for  which  the  collector 


44  THE    LAW     OF     SniPPING. 

8.  With  respect  to  this  provision  of  the  law,  there 
are  one  or  two  points  to  be  particularly  noted.      In 


shall  be  entitled  to  receive  the  sum  of  twenty-five  cents ;  and  the 
said  master  shall,  moreover,  enter  into  bond  with  sufficient  security, 
in  the  sum  of  four  hundred  dollars,  that  he  shall  exhibit  the  afore- 
said certified  copy  of  the  list  to  the  first  boarding  officer,  at  the 
first  port  in  the  United  States  at  which  he  shall  arrive,  on  his  re- 
turn thereto,  and  then  and  there  also  produce  the  persons  named 
therein,  to  the  said  boarding  officer,  whose  duty  it  shall  be  to 
examine  the  men  with  such  list,  and  to  report  the  same  to  the  col- 
lector ;  and  it  shall  be  the  duty  of  the  collector  at  the  said  port  of 
arrival  (when  the  same  is  different  from  the  port  from  which  the 
vessel  originally  sailed)  to  transmit  a  copy  of  the  list  so  reported 
to  him,  to  the  collector  of  the  port  from  which  said  vessel  origi- 
nally sailed,  provided,  that  the  said  bond  shall  not  be  forfeited  on 
account  of  the  said  master  not  producing  to  the  first  boarding 
officer,  as  aforesaid,  any  of  the  persons  contained  in  the  said  list, 
who  may  be  discharged  in  a  foreign  country,  with  the  consent  of 
the  consul,  vice-consul,  commercial  agent,  or  vice-commercial  agent, 
there  residing,  signified  in  writing,  under  his  hand  and  official  seal, 
to  be  produced  to  the  collector  with  the  other  persons  comprising 
the  crew,  as  aforesaid ;  nor  on  account  of  any  such  person  dying 
or  absconding,  or  being  forcibly  impressed  into  other  service,  of 
which  satisfactory  proof  shall  be  then  also  exhibited  to  the  collector. 
Sec.  1. 

The  Act  of  July  20,  1840,  supra,  with  reference  to  the  foregoing 
provision,  provides  as  follows  :  First.  The  duplicate  list  of  the  crew 
of  any  vessel  bound  on  a  foreign  voyage,  made  out  pursuant  to  the 
Act  of  Feb.  28,  1803,  shall  be  a  fair  copy  in  one  uniform  hand- 
writing, without  erasure  or  interlineation.  Second.  It  shall  be  the 
duty  of  the  owners  of  every  such  vessel  to  obtain  from  the  col- 
lector of  the  customs  of  the  district  from  which  the  clearance  is 
made,  a  true  and  certified  copy  of  the  shipping  articles,  containing 
the  names  of  the  crew,  which  shall  be  written  in  a  uniform  hand, 
without  erasures  or  interlineations.  Third.  These  documents,  which 
shall  be  deemed  to  contain  all  the  conditions  of  contract  with  the 
crew,  as  to  their  service,  pay,  voyage,  and  all  other  things,  shall 
be  produced  by  the  master,  and  laid  before  any  consul,  or  other 


OF  THE  SHIPPING  ARTICLES.       45 

the  first  place,  it  relates  to  foreign  voyages  and  coast- 
ing voyages  from  one  State  to  any  other  than  an  ad- 
joining State.  Neither  a  whaling  nor  fishing  voyage 
is  included  within  the  meaning  or  intent  of  this  act. 
A  foreign  voyage  means,  in  the  language  of  trade 
and  commerce,  a  voyage  to  some  port  or  place  within 
the  territory  of  a  foreign  nation.  But  the  ocean  is 
deemed  the  common  highway  of  all  nations,  and 
foreign  to  none.  Hence  a  whaling  or  fishing  voyage 
is  not  deemed  to  be  a  foreign  voyage  within  the  mean- 
ing of  the  various  Acts  of  Congress  using  that  phrase, 
or  one  of  equivalent  import.'  It  is  the  usage  in  the 
whaling  business  to  reduce  the  contract  with  the 
mariners  to  writing,  but  it  is  not  essential  to  its 
validity,  that  this  should  be  done.  There  is  no  Act 
of  Congress  making  it  necessary.  We  shall  see 
l)resently,  that  the  contract  with  fishermen,  engaged 
in  the  bank  and  other  cod-fisheries,  must  be  made  in 
writing  or  print  before  they  proceed  on  the  voyage, 

commercial  agent  of  the  United  States,  whenever  he  may  deem 
their  contents  necessary  to  enable  him  to  discharge  the  duties  im- 
posed upon  him  by  law  toward  any  mariner  applying  to  him  for 
his  aid  or  assistance.  Fourth.  All  interlineations,  erasures,  or 
writing  in  a  hand  different  from  that  in  which  such  duplicates  were 
originally  made,  shall  be  deemed  fraudulent  alterations,  working 
no  change  in  such  paper,  unless  satisfactorily  explained  in  a  man- 
ner consistent  with  innocent  purposes,  and  the  provisions  of  law 
which  guard  the  rights  of  mariners. 

'  Tabcr  V.  United  States,  1  Story's  II.  1,  7.  Sec  also  the  case 
of  Morris  v.  Conncll,  G  Law  llcporter,  'J04.  Where  the  contract 
for  a  whaling  voyage  was  reduced  to  writing,  and  where  a  clause, 
providing,  that  if  any  (jfficcr,  after  a  fair  trial  of  his  ability,  should 
be  judged  by  the  master  to  be  incompetent,  might  be  displaced, 
was  held  by  tlie  District  Court  of  Massachusetts  to  be  obligatory 
upon  the  parties. 


46  THE  LAW  OF   snirriNG. 

the  same  as  with  seamen  engaged  in  the  merchant 
service. 

9.  In  the  interpretation  that  has  been  put  npon 
this  Act,  there  has  been  no  conflict  of  judicial  opi- 
nion. It  has  been  uniformly  held,  that  the  shipping 
articles  must  declare  explicitly  the  ports  at  which 
the  voyage  is  to  commence  and  terminate.^  The 
language  of  the  law  is  plain.  It  requires  "  the 
voyage  or  voyages,  term  or  terms  of  time,  for  which 
every  seaman  or  mariner  on  board  shall  be  shipped," 
to  be  set  forth  in  the  contract.  Hence  when  the  ar- 
ticles specify  a  voyage  from  Baltimore  "  to  CuraQoa 
and  elsewhere,"  the  words,  "  and  elsewhere,"  are 
either  rejected  for  uncertainty,  or  construed  as  sub- 
ordinate to  the  voyage  specified.  In  any  event,  they 
can  only  authorize  the  pursuing  such  a  voyage  as 
may  be  necessary  to  accomplish  the  principal  voyage.^ 

10.  In  a  case  before  Lord  Stowell,  where  the 
voyage  was  described  in  the  shipping  articles,  as  a 
voyage  from  London  to  New  South  Wales  and  India, 
and  to  return  to  a  port  in  Europe,  the  words,  "  or 
elsewhere,"  were  added  in  the  margin  in  a  way 
hardly  legible,  and  without  any  reference  as  to  where 
they  were  to  come  in.  Lord  Stowell  was  strongly 
inclined  to  hold,  upon  the  evidence,  that  the  words, 
"  or  elsewhere,"  did  not  compose  any  part  of  the  text 
of  the  original  contract ;  but  if  they  did,  "  I  have  no 

*  Magce  V.  The  Moss,  Gilpin's  R.  219 ;  Wood  v.  The  Nimrod, 
Ibid.  83 ;  Brown  v.  Jones,  2  Gallison,  R.  477  ;  see,  also,  U.  S.  v. 
Staly,  1  W.  &  M.  338. 

2 1  Hall's  Law  Journ.  209 ;  see  Thompson  v.  Ship  Oakland,  4 
Law  R.  349. 


OF    THE    SHIPPING    ARTICLES.  47 

hesitation  in  asserting,"  lie  observed,  "that  they  are 
not  to  be  taken  in  that  indefinite  latitude  in  which 
they  are  expressed ;  they  are  no  description  of  a 
voyage ;  they  are  an  unlimited  description  of  the 
navigable  globe,  and  are  not  to  be  admitted  as  a  uni- 
versal alibi  for  the  whole  world,  including  the  most 
remote,  and  even  pestilential  shores,  indefinite  other- 
wise, both  in  space  and  time.  They  must  receive  a 
reasonable  construction,  a  construction  which,  I 
readily  admit,  must  be,  to  a  certain  extent,  conform- 
able to  the  necessities  of  commerce.  The  word 
*  elsewhere'  must,  in  its  construction,  vary  much, 
according  to  the  situation  of  the  primary  port  of  des- 
tination. If  it  is  applied  to  a  country  remote  from 
all  neighboring  settlements,  it  is  entitled  to  a  larger 
construction  ;  if  to  one  which  is  surrounded  by  many 
adjacent  ports,  the  limitation  would  be  much  nar- 
rowed ;  and  I  cannot  help  observing  here,  that  the 
captain  has  deprived  himself  of  an  extensive  latitude, 
liy  describing  his  primary  port  to  be  in  the  neigh- 
borhood of  many  adjacent  j)orts  which  could  supply 
cargoes." 

11.  "  Where  a  trade  is  carried  on  notoriously  in  an 
established  course,  and  that  in  a  remote  part  of  the 
world,  where  various  obstructions  may  occur,  I  will 
not  say,  that  the  Court  might  not  strain  hard  to  support 
a  change  of  voyage,  even  on  an  imperfect  description 
of  it  contained  in  the  articles,  if  it  appeared  conforma- 
ble to  the  general  routine  of  the  commerce  there  car- 
ried on,  and  presumed  to  be  generally  known  to  all 
persons  wIkj  resorted  there,  in  the  case,  for  instance, 
of  a  return  voyage  to  India  to  collect  a  cargo,  if  it 


48  THE    LAAV    OF    SHIPPING. 

was  the  constant  habit  of  vessels  to  pursue  any  es- 
tabhshed  course,  the  Court  might  possibly  favor  such 
a  construction  of  the  contract,  although  not  specifi- 
cally expressed,  though  it  would  certainly  very  much 
improve  the  Court's  view  of  such  a  question,  if  that 
appeared  to  have  been  done,  which  appears  by  the 
evidence  here  to  have  been  done  in  several  instances, 
— making  an  addition  to  the  rate  of  wages  conform- 
able to  the  value  of  navigation  and  sea  service  in 
that  quarter  of  the  globe ;  for  that  might  be  properly 
considered  by  the  owners,  and  perhaps  by  the  Court, 
as  taking  their  fair  share  in  the  disadvantages  that 
attended  such  an  adventure.'" 

12.  If  there  is  any  ambiguity,  uncertainty,  or 
obscurity  in  the  shipping  contract,  especially  in  the 
description  of  the  voyage,  the  construction  most  fa- 
vorable to  the  seamen  will  be  adopted.  The  reason 
is  obvious.  It  is  the  owners  who  give  the  descrip- 
tion of  the  voyage ;  and  on  general  principles,  ap- 
plying to  all  contracts,  if  the  language  is  ambiguous 


'  The  Minerva,  1  Hagg.  Adm.  R.  347 ;  The  George  Home,  Id. 
370;  The  Countess  of  Ilarcourt,  Id.  249;  The  Eliza,  Id.  182; 
The  Cambridge,  2  Hagg.  II.  243  ;  Brown  v.  Jones,  2  Gallison,  R. 
477.  In  this  latter  case  a  mariner  shipped  on  a  voyage  "  from 
Boston  to  the  Pacific,  Indian,  and  Chinese  Oceans,  or  elsewhere, 
on  a  trading  voyage;  and  from  thence  back  to  Boston,"  with  a 
stipulation,  that  two  months'  wages  should  be  paid  on  arrival  at 
Canton;  the  voyage  being  in  fact  a  trading  voyage  to  the  North- 
west Coast  for  furs.  It  was  held,  that  the  outward  voyage  termi- 
nated at  Canton,  and  that  the  shipping  articles  did  not  authorize  a 
return  from  Canton  to  the  Northwest  Coast ;  and  that,  therefore,  it 
was  not  a  desertion  in  a  mariner  to  leave  the  ship  at  Canton,  it 
being  the  intention  of  the  ship  to  return  to  that  coast.  The  Ship 
Moss,  Gilpin's  R.  219. 


OF  THE  SHIPPING  ARTICLES.       49 

or  uncertain  in  its  meaning,  the  construction  shall 
be  against  the  party  who  uses  it,  because  he  is  bound 
to  express  himself  clearly ;  and  this  principle  ap- 
plies with  all  its  force  to  contracts  between  owners, 
who  are  always  men  conversant  in  business,  and 
shrewd  and  watchful  in  looking  to  their  own  inte- 
rests, and  seamen,  who  are  proverbially  careless, 
improvident,  and  ignorant.  The  disparity  in  the 
condition  of  the  parties  imposes  on  a  Court  of  Admi- 
ralty the  duty  to  take  care  that  the  improvidence  of 
seamen  is  not  entrapped,  by  the  superior  watchful- 
ness and  sagacity  of  owners,  into  engagements  that 
they  did  not  intend  to  make.^ 

13.  Hence,  when  in  the  shipping  articles  of  an 
English  vessel,  the  voyage  was  described  to  be  from 
Liverpool  to  Savannah,  and  any  port  or  ports  of  the 
United  States,  of  the  West  Indies,  or  of  British 
North  America,  the  term  of  service  not  to  exceed 
twelve  months,  it  was  held  that  the  voyage  intended 
was  confined  to  the  ports  on  the  eastern  shore  of 
the  continent,  and  that  the  articles  did  not  authorize 
a  voyage  to  San  Francisco,  on  the  Northwest  Coast. 
The  description  would  naturally  suggest  to  the  sea- 
men a  voyage  to  those  ports  which  were  familiar  to 
the  commerce  of  their  country,  and  which  were  fre- 
quently and  ordinarily  visited  for  the  purposes  of 
trade,  that  is,  to  British  and  American  ports  on  the 
eastern  shore  of  the  continent.^ 

14.  The  result  of  the  cases  is,  that  when  the  tcr- 

»  The  Ilcinrich,  Crabbe's  R.  22G;  The  Ada,  Davica'  II.  407. 
'  The  Ada,  sujira. 

4 


50  THE    LATT    OF    SIIirPING. 

Qnimis  a  quo  and  the  terminus  ad  quern  are  fixed,  but 
loose  and  indefinite  expressions  are  employed  as  to  tlie 
further  course  of  the  voyage,  they  will  either  be  re- 
jected for  uncertainty,  or  construed  as  subordinate 
to  the  principal  vo3'age  stated  in  the  preceding 
words.  It  should  be  observed,  that  the  master  must 
avail  himself  of  the  ports  described  in  the  contract, 
in  the  order  in  which  they  stand,  and  cannot  recur 
back  from  the  last  to  any  former  port.  Thus,  ship- 
ping articles  for  a  voyage  from  "  Philadelphia  to 
Gibraltar,  other  ports  in  Europe,  or  South  America, 
and  back  to  Philadelphia,"  authorize  a  voyage  di- 
rectly from  Gibraltar  to  South  America,  without 
proceeding  to  any  intermediate  European  port,  but 
not  a  return  afterwards  from  thence  to  a  European 
port.  ^ 

15.  If  by  the  terms  of  the  shipj^ing  contract,  the 
master  is  left  at  liberty  to  use  his  discretion  as  to 
the  intermediate  course  of  the  voyage,  he  may  carry 
the  vessel  to  a  port  not  named,  without  thereljy  vio- 
lating the  contract.  Thus,  where  the  shipping-arti- 
cles described  the  voyage  to  be  "  from  New  York  to 
Darien,  thence  to  St.  Thomas,  thence  to  New  Or- 
leans," "  or  as  the  master  may  direct,"  and  back  to 
New  York,  it  was  held  to  be  no  violation  of  the  con- 
tract with  the  seamen  to  stop  at  a  place  not  named, 
and  afforded  no  justification  to  them  for  leaving  the 
vessel.^ 

'  Douglass  V.  Eyre,  Gilpin's  R.  147  j  Brown  v.  Jones,  2  Gallis. 
477. 

=  The  Nirarod,  Gilpin's  R.  83.  If  the  shipment  is  for  an  inde- 
finite period,  the  seamen  are  at  liberty  to  leave  the  ship,  after  the 


OF    THE     SHIPPING    ARTICLES.  51 

16.  Upon  this  principle,  it  has  also  been  held, 
that  when  the  shipping  articles  declare  the  voyage 
to  be  ''  from  Philadelphia  to  South  America,  or  any 
other  port  or  ports,  backward  and  forwards,  when 
and  where  required,  and  back  to  Philadelphia,"  they 
are  not  violated,  if  the  master  proceeds  from  South 
America  to  Europe ;  and  his  doing  so  affords  no  jus- 
tification to  the  mariners  for  leaving  the  vessel/     It 

termination  of  any  particular  voyage,  and  the  discharge  of  cargo 
at  the  port  of  delivery.  The  Heinrich,  snjyra ;  see  also  The 
Crusader,  AVare's  R.  437 ;  Thompson  v.  Ship  Oakland,  4  Law  Rep. 
349.  The  shipping  articles  in  this  case  described  the  voyage 
to  be  from  Boston  to  one  or  more  ports  in  Europe  and  back  to  a 
port  of  discharge  in  the  United  States :  It  was  held,  that  the  de- 
scription was  sufficiently  certain  to  bind  the  parties  to  the  perfor- 
mance of  the  voyage.  And  the  owners  refusing  to  do  so,  and  the 
ship  returning  with  the  seamen  on  board  to  the  home  port,  a  sum 
equal  to  one  month's  wages  was  allowed  to  each  seaman,  as  com- 
pensation for  the  loss  of  the  voyage  to  Europe.  As  to  this  latter 
point,  see  Wolf  v.  The  Oder,  2  Pet.  Ad.  R.  2G1 ;  Hindman  v. 
Shaw,  2  Pet.  205. 

'  The  Ship  Moss,  Ibid.  219.  In  delivering  his  opinion  in  this 
case,  Judge  Hopkinson  said : — The  voyage  described  in  the  arti- 
cles is  "from  Philadelphia  to  South  America,  or  any  other  port  or 
ports,  backwards  and  forwards,  when  and  Avherc  required,  and 
back  to  Philadelphia,  unless  sooner  discharged."  This  is  certainly 
a  very  awkward  description  of  a  voyage.  South  America  is  spoken 
of  as  a  port  to  which  they  are  to  go,  "  or"  to  any  other  port  or 
ports,  without  any  designation  of  them,  whether  in  Europe  or 
America;  but  they  are  to  go  backwards  and  forwards,  when  and 
where  required.  It  will  not  do  to  tic  down  these  contracts,  made 
sometinjcH  in  a  counting-house,  and  sometimes  in  the  cabin  of  a 
ship,  to  the  strict  rules  of  composition.  We  must  endeavor  to 
come  at  the  true  meaning  of  the  parties,  and  to  give  the  contract 
a  rca.sonablc  construction  ;  to  take  care  to  put  upon  general  words 
a  just  and  rcasonal)le  limitation;  Imt  not  li^rlitly  (n  destroy  and 
avoid  the  whole  contract  because  the  generality  or  breadth  of  the 


52  THE    LAW    OF     SHIPPING. 

was  contciKled  at  the  argument,  and  we  think  with 
great  force  of  reasoning,  that  inasmuch  as  the  ship 
was  going  from  Havana  to  Marseilles,  in  Europe, 
the  voyage  was  not  within  the  contract,  and  the 
seamen  were  not  bound  to  go  with  her.  That  the 
breach  of  the  contract  was  on  the  part  of  the  cap- 
tain, in  taking  the  ship  to  a  place  not  within  the 
terms  of  the  articles.  That  the  language  employed 
was  indcfuiite,  both  in  space  and  time,  and  was  no 
proper  description  of  a  "  voyage  or  voyages."  That 
the  terms  of  the  contract  were  as  uncertain,  as  the 
term  "or  elsewhere,"  and  that  the  voyage  to  Europe 
was  not  subordinate  to  the  principal  voyage  de- 
scribed. But,  as  before  observed,  it  was  held  that 
this  voyage  or  these  voyages  were  strictly  within 
the  terms  of  the  contract. 

17.  The  shipping  articles  and  list  of  the  crew  are 
deemed  to  contain  all  the  conditions  of  contract  with 
the  crew  as  to  their  service,  pay,  voyage,  and  all 
other  things.^  And  all  shipments  made  contrary  to 
the  Act  of  1840,  and  other  preceding  Acts  of  Con- 
expressions  may  be  in  a  degree  uncertain,  or  might  be  used  to 
impose  an  oppressive  service.  The  Court  will  take  care  that  this 
shall  not  be  done,  and  will  avoid  the  whole  if  they  cannot  so 
limit  it.  In  the  present  case,  I  can  see  nothing  unreasonable  or 
oppressive  in  the  construction  the  captain  has  put  upon  these  arti- 
cles. He  took  the  ship  to  Buenos  Ayrcs;  he  then  went  to  Ila- 
'  vana,  and  from  thence  to  Marseilles ;  he  came  again  to  a  port  in 
South  America,  and  then  terminated  the  voyage  by  returning  to 
Philadelphia.  This  voyage,  or  these  voyages,  were  strictly  within 
the  terms  of  the  contract;  and,  in  my  opinion,  no  unjust  or 
oppressive  use  has  been  made  of  the  awkward  manner  in  which 
the  contract  is  expressed. 

1  Act  of  July  20,  18:10,  sec.  3. 


OF    THE    SHIPPING    ARTICLES.  53 

gress,  are  void;  and  any  seaman  so  shipped  may 
leave  the  service  at  any  time,  and  demand  the 
highest  rate  of  wages  paid  to  any  seaman  shipped 
for  the  voyage,  or  the  sum  agreed  to  be  given  him 
at  his  shipment.^  The  second  section  of  this  Act 
requires  the  owners  of  every  vessel  bound  on  a 
foreign  voyage  to  obtain  from  the  collector  of  the 
customs  of  the  district  from  which  the  clearance  is 
made,  a  true  and  certified  copy  of  the  shipping 
articles,  containing  the  names  of  the  crew,  which 
shall  be  written  in  a  uniform  hand,  without  erasures 
or  interlineations.  And  the  fourth  section  provides, 
that  all  interlineations,  erasures,  or  writing  in  a 
hand  different  from  that  in  which  such  duplicates 
were  originally  made,  shall  be  deemed  fraudulent 
alterations,  working  no  change  in  such  papers,  miless 
satisfactorily  explained  in  a  manner  consistent  with 
innocent  purposes,  and  the  provisions  of  law  which 
guard  the  rights  of  mariners. 

18.  The  Legislature,  when  it  declares  that  the 
articles  and  list  of  the  crew  "shall  be  deemed  to  con- 
tain all  the  conditions  of  contract  with  the  crew  as 
to  their  pay,  voyage,  and  all  other  things,"  does  not 
declare  that  those  conditions  shall  be  conclusive  and 
binding  on  all  parties  for  and  during  the  time  so 
agreed  and  contracted  for.    On  the  contrary,  a  Court 

'  Ibid.  sec.  10.  A  parol  undcrstainliiii,'  that  the  vessel  was  not 
to  complete  the  voyage  described  in  tlic  shipping  articles,  is  not 
admi.s.sibh'.  Inability  to  obtain  freight  is  not  such  a  necessity  as 
ab.<iolvcH  the  owner  from  his  contract  to  perform  the  voyage  dc- 
Bcribod  in  the  articles.  Thompson  v.  Siiip  Oakland,  4  Law  Hep. 
349. 


54  THE    LAW    OF    SniPPING. 

of  Admiralty  in  interpreting  the  conditions  of  a 
mariner's  contract,  ii"  it  finds  that  they  derogate  from 
the  general  rights  and  privileges  of  seamen,  will  de- 
clare them  void,  as  founded  upon  imposition  or  an 
undue  advantage  taken  of  the  necessities  and  igno- 
rance and  improvidence  of  this  class  of  men,  unless 
two  things  concur  :  first,  that  the  nature  and  opera- 
tion of  the  clause  is  fully  and  fairly  explained  to  the 
seamen ;  and  secondly,  that  an  additional  compensa- 
tion is  allowed,  entirely  adequate  to  the  new  restric- 
tions and  risks  imposed  upon  them.  And  the  onus 
prohandi  is  on  the  ship-owner  to  establish  these 
facts.^ 

*  Brown  v.  Lull,  2  Lum.  R.  443;  The  Juliana,  2  Dod.  R.  504; 
The  Minerva,  1  Hagg.  Ad.  R.  347 ;  Swift  v.  Clark,  15  Mass.  443; 
The  George  Home,  1  Hagg.  Ad.  R.  370;  Harden  v.  Gordon,  2 
Mason,  541.  In  this  latter  case,  it  was  said  by  Judge  Story,  that 
"  every  Court  should  watch  with  jealousy  an  encroachment  upon 
the  rights  of  seamen,  because  they  are  unprotected,  and  need  coun- 
sel; because  they  are  thoughtless,  and  require  indulgence;  be- 
cause they  arc  credulous  and  complying,  and  are  easily  over- 
reached. But  Courts  of  maritime  law  have  been  in  the  constant 
habit  of  extending  towards  them  a  peculiar,  protecting  favor  and 
guardianship.  They  are  emphatically  the  wards  of  the  Admiralty; 
and  though  not  technically  incapable  of  entering  into  a  valid  con- 
tract, they  are  treated  in  the  same  manner  as  Courts  of  equity  arc 
accustomed  to  treat  young  heirs,  dealing  with  their  expectancies, 
wards  with  their  guardians,  and  ccstuis  que  trust  with  their  trus- 
tees. They  are  considered  as  placed  under  the  dominion  and  in- 
fluence of  men,  who  have  naturally  acquired  a  mastery  over  them; 
and  as  they  have  little  of  the  foresight  and  caution  belonging  to 
persons  trained  in  other  pursuits  of  life,  the  most  rigid  scrutiny 
is  instituted  into  the  terms  of  every  contract  in  which  they  en- 
gage  Every  deviation  from  the  terms  of  the 

common  shipping  paper  (which  stands  upon  the  general  doctrines 
of  maritime  law)  is  rigidly  inspected ;  and  if  additional  burthens 


OF    THE     SHIPPING    ARTICLES.  55 

19.  A  Court  of  Law  might  be  disposed  to  interpret 
a  seaman's  contract  upon  the  same  principles  that  it 
apphes  to  all  other  contracts.^  A  Court  of  law  works 
its  way  to  short  issues,  and  confines  its  views  to  them. 
A  Court  of  Equit}''  takes  a  more  comprehensive  view, 
and  looks  to  every  connected  circumstance  that 
ought  to  influence  its  determination  upon  the  real 
justice  of  the  case.  A  Court  of  xYdmiralty  is  bound, 
by  its  commission  and  constitution,  to  determine  the 
cases  submitted  to  its  cognizance  upon  equitable 
principles,  and  according  to  the  rules  of  natural 
justice.-  Hence  the  latitude  which  it  allows  to  itself, 
in  the  interpretation  of  seamen's  articles.  Piima 
facie,  they  are  presumed  to  import  verity.  At  the 
same  time  they  are  not  deemed  absolutely  conclu- 
sive. They  are  open  to  evidence  of  fraud,  mistake, 
or  interpolation.^ 

20.  By  the  Act  of  1790,  the  time,  the  day,  and 
hour,  when  the  seamen  shall  render  themselves  on 

or  sacrifices  are  imposed  upon  the  seamen,  without  adequate  remu- 
ncratiou,  the  Court  feels  itself  authorized  to  interfere  and  mode- 
rate or  annul  the  stipulation.  And  on  every  occasion  the  Court 
expects  to  be  satisfied,  that  the  compensation  for  every  material 
alteration  is  entirely  adequate  to  the  diminution  of  riglit  or  jirivi- 
lege  on  the  part  of  the  seamen." 

'  Sec  Appleby  V.  Dods,  8  East,  300 ;  Jesse  v.  Roy,  1  Cromp. 
Jcrv.  &  Rose.  R.  310,  329,  330.  An  agreement  contrary  to  the 
policy  of  a  .statute  is  void  both  in  law  and  equity. 

«  The  Juliana,  '2  Dod's  Adm.  R.  504. 

"  Willard  v.  Dorr,  3  Mason's  R.  IGl ;  The  Isabella,  2  Rob.  Ad. 
R.  241;  Raker  v.  Corey,  III  Pick.  490;  Veacock  v.  M'Call,  1 
Gilpin's  R.  329;  Wickham  v.  Blight,  Id.  452;  Porcupine,  1 
Ilagg.  R.  378;  The  Harvey,  2  Id.  7!»;  The  rriucc  George,  3 
Hagg.  R.  370. 


56  THE     LAW    OF    SIIiri'ING. 

board,  is  to  be  entered  iit  the  loot  of  such  agree- 
ment, and  if  any  seaman  fails  to  render  himself  on 
board,  or  deserts,  so  that  the  ship  proceeds  to  sea 
without  him,  he  forfeits  a  sum  equal  to  his  advance 
wages  over  and  besides  such  advance.^  A  Justice  of 
the  Peace  may,  upon  complaint  of  the  master,  issue 
a  warrant  to  apprehend  a  deserting  seaman,  and 
commit  him  to  the  house  of  correction  or  common 
jail,  there  to  remain  until  the  ship  is  ready  to  sail 


'  "  That  at  the  foot  of  every  such  contract  there  shall  be  a  me- 
morandum in  writing,  of  the  day  and  hour  on  which  such  seaman 
or  mariner,  who  shall  ship  and  subt^cribe,  shall  render  themselves 
on  board,  to  begin  the  voyage  agreed  upon.  And  if  any  such 
seaman  or  mariner  shall  neglect  to  render  himself  on  board  the 
ship  or  vessel,  for  which  he  has  shipped,  at  the  time  mentioned  in 
such  memorandum,  and  if  the  master,  commander,  or  other  officer 
of  the  ship  or  vessel,  shall,  on  the  day  on  which  such  neglect  hap- 
pened, make  an  entry  in  the  log-book  of  such  ship  or  vessel,  of 
the  name  of  such  seaman  or  mariner,  and  shall,  in  like  manner, 
note  the  time  that  he  so  neglected  to  render  himself  (after  the  time 
appointed),  every  such  seaman  or  mariner  shall  forfeit,  for  every 
hour  which  he  shall  so  neglect  to  render  himself,  one  day's  pay, 
according  to  the  rate  of  wages  agreed  upon,  to  be  deducted  out  of 
his  wages.  And  if  any  such  seaman  or  mariner  shall  wholly  ne- 
glect to  render  himself  on  board  of  such  ship  or  vessel,  or  having 
rendered  himself  on  board,  shall  afterwards  desert  and  escape,  so 
that  the  ship  or  vessel  proceed  to  sea  without  him,  every  such  sea- 
man or  mariner  shall  forfeit  and  pay  to  the  master,  owner,  or  con- 
signee of  the  said  ship  or  vessel,  a  sum  equal  to  that  which  shall 
have  been  paid  to  him  by  advance  at  the  time  of  signing  the  con- 
tract, over  and  besides  the  sum  so  advanced,  both  which  sums 
shall  be  recoverable  in  any  Court,  or  before  any  Justice  or  Justices 
of  any  state,  city,  town,  or  county  within  the  United  States,  which 
by  the  laws  thereof  have  cognizance  of  debts  of  equal  value,  against 
such  seaman  or  mariner,  or  his  surety  or  sureties,  in  case  he  shall 
have  given  surety  to  proceed  the  voyage."  Sec.  2  of  the  Act  of 
1790.     See  The  Washington,  Crabbe's  R.  204. 


OF    THE    SHIPPING    ARTICLES.  57 

on  lier  voyage,  and  then  cause  him  to  be  dehvered 
to  the  master.'  If  a  seaman  absents  hhnself  without 
leave  after  the  time  agreed  on  to  render  himself  on 
board,  at  the  commencement  of  the  voyage,  he  for- 
feits one  day's  pay  for  every  hour  of  absence. '  Upon 
this  section  of  the  statute,  it  has  been  held,  that  the 
mariner  may  prove  a  special  indulgence  granted  by 
the  master  to  be  absent  beyond  the  time  specified  in 
the  articles,  to  rebut  the  proof  made  by  the  log-book.' 
The  forfeitures  denounced  by  the  second  section  of 
the  Act,  it  will  be  observed,  are  incurred  for  neglect 
or  breach  of  duty  in  cases,  which  can  only  happen 
prior  to  the  commencement  of  the  voyage." 

'  "  That  if  any  seaman  or  mariner,  who  shall  have  signed  a  con- 
tract to  perform  a  voyage,  shall,  at  any  port  or  place,  desert,  or 
shall  absent  himself  from  such  ship  or  vessel,  without  leave  of  the 
master,  or  officer  commanding  in  the  absence  of  the  master,  it 
shall  be  lawful  for  any  Justice  of  the  Peace  within  the  United 
States  (upon  the  complaint  of  the  master)  to  issue  his  warrant  to 
apprehend  such  deserter,  and  bring  him  before  such  Justice )  and 
if  it  shall  then  appear,  by  due  proof,  that  he  has  signed  a  contract 
within  the  intent  and  meaning  of  this  Act,  and  that  the  voyage 
agreed  for  is  not  finished,  altered,  or  the  contract  otherwise  dis- 
solved, and  that  such  seaman  or  mariner  has  deserted  the  ship  or 
vessel,  or  absented  himself  without  leave,  the  said  Justice  shall 
commit  him  to  the  house  of  correction,  or  common  jail  of  the  city, 
town,  or  place,  there  to  remain  until  the  said  ship  or  vessel  shall 
be  ready  to  proceed  on  her  voyage,  or  till  the  master  shall  require 
his  discharge,  and  then  to  be  delivered  to  the  said  master,  he  pay- 
ing all  the  cost  of  such  commitment,  and  deducting  the  same  out 
of  tlie  wages  due  to  such  seaman  or  mariner."  Act  U.  S.  17'JO, 
eh.  5(j,  sec.  7. 

•  Sect.  2,  vt  giijmt. 

"Thomi.son  v.  Philadelphia,  1  Peter's  Adm.  11.  210;  Cotel  v. 
Ililliard,  1  .Mass.  K.  G()5 ;  Curtis's  Merchant  Seamen,  111. 

♦  Cotel  V.  Ililliard,  ut  »upra. 


58  THE    LAW    OF    SHIPPING. 

21.  The  liftli  section  of  the  Act  provides,  that  if  any 
seaman  who  has  signed  the  articles  shall  absent  him- 
self without  leave,  and  a  proper  entry  shall  be  made 
thereof  in  the  log-book  on  the  same  day,  if  he  returns 
to  duty  within  forty-eight  hours,  he  shall  forfeit  three 
days'  pay  for  every  day's  absence,  to  be  deducted  out 
of  his  wages ;  if  absent  more  than  forty-eight  hours 
at  one  time,  he  shall  forfeit  all  the  w\ages  due  to  him, 
and  all  his  goods  and  chattels  on  board  of  the  ship, 
or  in  any  store  where  they  may  have  been  lodged  at 
the  time  of  the  desertion,  and  shall,  moreover,  pay  all 
damages.^  This  section  applies  to  the  case  of  ab- 
sence or  desertion  occurring  after  the  commencement 
and  during  the  continuance  of  the  voyage. 

'  Sec.  5.  "  That  if  any  seaman  or  mariner  who  shall  have  sub- 
scribed such  contract  as  is  hereinbefore  described,  shall  absent 
himself  from  on  board  the  ship  or  vessel,  in  which  he  shall  so  have 
shipped,  without  leave  of  the  master  or  officer  commanding  on 
board;  and  the  mate,  or  other  officer  having  charge  of  the  log- 
book, shall  make  an  entry  therein  of  the  name  of  such  seaman  or 
mariner,  on  the  day  on  which  he  shall  so  absent  himself,  and  if 
such  seaman  or  mariner  shall  return  to  his  duty  within  forty-eight 
hours,  such  seaman  or  mariner  shall  forfeit  three  days'  pay  for 
every  day  which  he  shall  so  absent  himself,  to  be  deducted  out  of 
his  wages;  but  if  any  seaman  or  mariner  shall  absent  himself  for 
more  than  forty-eight  hours  at  one  time,  he  shall  forfeit  all  the 
wages  due  to  him,  and  all  his  goods  and  chattels  which  were  on 
board  the  said  ship  or  vessel,  or  in  any  store  where  they  may  have 
been  lodged  at  the  time  of  his  desertion,  to  the  use  of  the  owners 
of  the  ship  or  vessel,  and  moreover  shall  be  liable  to  pay  to  him 
or  them,  all  damages  which  he  or  they  may  sustain  by  being 
obliged  to  hire  other  seamen  or  mariners  in  his  or  their  place;  and 
such  damages  shall  be  recovered  with  'costs,  in  any  Court,  or  before 
any  Justice  or  Justices,  having  jurisdiction  of  the  recovery  of  debts, 
to  the  value  of  ten  dollars  or  upwards." 


OF    THE     SniPPIXG    ARTICLES.  59 

22.  lu  the  construction  of  this  section  of  the  Act,  it 
is  held,  that  a  proper  entry  in  the  log-book  is  indis- 
pensable evidence  of  a  desertion,  for  which  a  forfeit- 
ure of  wages  is  claimed.  And  it  is  not  a  proper 
entry  simply  that  the  seaman  was  absent.  It  must 
be  also  stated,  whether  it  was  with  or  without  leave. 
Stating  that  the  seaman  left  the  ship  is  not  sufficient. 
The  entry  must  be  made  on  the  very  day  when  the 
seaman  absented  himself  from  the  ship.  An  entry 
on  a  subsequent  day  is  not  a  compliance  with  the 
law.  The  entry  must  mention  the  name  of  the  ma- 
riner against  whom  the  forfeiture  is  to  be  enforced. 
It  is  not  sufficient  to  say  generally  that  the  crew,  or 
even  that  all  the  crew,  were  absent.  And  to  incur 
the  forfeiture  there  must  be  one  continued  absence 
of  forty-eight  hours. ^ 

23.  The  fourth  section  of  the  Act  provides,  that 
if  any  person  shall  harbor,  or  secrete,  any  seaman  or 
mariner,  belonging  to  any  ship  or  vessel,  knowing 
them  to  belong  thereto,  every  such  person,  on  con- 
viction thereof,  Ijefore  any  Court  in  the  city,  town,  or 
county,  where  he,  she,  or  they  may  reside,  shall  for- 
feit and  pay  ten  dollars  for  every  day  which  he,  she, 
or  they  shall  continue  so  to  harbor  or  secrete  such 

'  Fliiiidcrs*  Maritime  Law,  and  authorities  there  cited.  Where 
there  is  no  entry  in  the  log-book,  of  the  absence  of  a  seaman  with- 
out h'avo,  and  lie  is  received  on  board  again,  his  wages  cannot  be 
forfeited  under  the  Act  of  20th  July,  1700.  The  Otis,  Crabbe's 
R.  52. 

The  law  rcfiuircs  that  the  entry  made  in  the  log-book,  of  the  ab- 
sence of  a  seaman,  shall  show  that  it  was  without  leave,  in  order 
that  an  innocent  departure  shall  not  afterwards  be  turned  into  a 
desertion.     The  Washington,  Crabbe's  11.  201. 


GO  THE     LAW    OF     SIIirPING. 

seaman  or  iiiariiior,  one-half  to  the  nse  of  the  person 
prosecuting  for  the  same,  the  other  half  to  the  use 
of  the  United  States ;  and  no  sum  exceeding  one 
dollar  shall  be  recoverable  from  any  seaman  or  raor 
riner  by  any  one  person,  for  any  debt  contracted 
during  the  time  such  seaman  or  mariner  shall  ac- 
tualh'  belong  to  any  ship  or  vessel,  until  the  voyage, 
for  which  such  seaman  or  mariner  engaged,  shall  be 
ended.  The  latter  clause  of  this  section  being  con- 
sidered as  in  restraint  of  a  general  right,  it  has  been 
held,  that  a  seaman  claiming  its  protection,  is  bound 
to  produce  the  shipping  paper,  which  is  the  best  evi- 
dence of  his  belonging  to  the  ship,  and  of  the  day  he 
joined  her;  and  that  it  is  not  enough,  in  order  to 
let  in  other  evidence,  to  show  that  the  shipping 
paper  is  beyond  the  reach  of  the  defendant,  without 
showing  that  it  is  lost  or  destroyed.^ 

24.  We  may  here  observe,  that  by  a  subsequent 
Act,  the  provisions  of  the  Act  of  1790,  are  extended 
to  seamen  employed  in  the  fisheries.^  They  are  re- 
quired, the  same  as  merchant  seamen,  to  enter  into 
an  agreement  in  writing,  or  in  print,  for  their  ser- 
vices ;  and  in  addition  to  such  terms  of  shipment  as 
may  be  agreed  on,  the  same  agreement  is  to  express 
whether  the  same  is  to  continue  for  one  voyage,  or 
for  the  fishing  season,  and  also  to  express,  that  the 
fish,  or  the  proceeds  of  such  fishing  voyage  or  voy- 
ages, which  appertain  to  the  fishermen,  shall  be  di- 
vided among  them  in  proportion  to  the  quantities  or 
number  of  said  fish,  which  they  may  respectively 

'  Reynard  v.  Brecknell,  4  Pick.  R.  302. 
2  Act  of  June  19,  1813,  cb.  2,  sec.  1. 


OF    THE    SHIPPING    ARTICLES.  61 

have  caught ;  and  the  agreement  to  be  countersigned 
by  the  owner  or  his  agent.'  The  omission  to  enter 
into  such  an  agreement  in  writing,  or  in  print,  is  a 
forfeiture  of  the  bounty  allowed  by  the  government 
on  such  voyages,  and  also  of  the  other  remedies  pre- 
scribed by  the  Act  in  favor  of  the  owner  and  fisher- 
men.^ Any  neglect  or  refusal  of  duty,  or  resistance 
of  just  commands,  subjects  the  offender  to  an  action 
for  damages,  and  also  forfeits  to  the  use  of  the  owner 
the  government  bounty.^ 

25.  Whatever  may  be  the  common  custom,  or  the 
law  of  the  United  States,  in  regard  to  bounty,  it  is 
competent  for  the  owners  of  a  fishing-vessel  to  en- 
gage men  at  wages,  to  navigate  the  vessel,  and  take 
fish  for  their  account.  And  when  one  of  the  owners 
of  a  fishing-vessel  acts  as  master,  and  the  others  do 
not  interfere,  he  must  be  deemed  agent  for  the  own- 
ers; the  contract  enures  to  their  use,  and  binds  them 
jointly.  And  if  it  appears  that  a  seaman,  who  con- 
tracted for  wages  on  a  fishing  voyage,  was  induced, 
by  fraudulent  misrepresentations,  to  sign  shipping 
articles,  by  which  he  w^ould  receive  a  share  of  the 
fish  as  his  compensation,  the  prior  contract  remains 
unafibcted  by  the  articles.' 

20.  We  have  endeavored,  in  the  preceding  sec- 
tions, to  l)ring  togctlier,  in  convenient  form,  the  sta- 
tutory provisions  wliicli  relate  directly  or  indirectly 

'  Art  of  June  19,  1813,  ch.  2,  sec.  1. 
"  Ibid,  and  bcc.  2;  Act  of  181G,  cli.  ]  I. 
»  Sec.  1,  of  Act  of  l^ia,  mjyra. 
*  leaker  v.  Corey,  19  Pick.  11.  40G. 


62  THE    LATV    OF    SHIPPING. 

to  the  contracts  of  seamen.  Those  which  provide 
especially  for  the  conduct  of  seamen  after  the  con- 
tract is  signed,  particularly  as  to  their  rendering 
themselves  on  board  at  the  appointed  time,  and  fix- 
ing the  penalty  of  absence,  do  not  directly  concern 
the  shipping  articles;  but  as  the  duties  of  the  seamen 
have  their  inception  upon  the  execution  of  the  arti- 
cles, I  have  thought  it  proper  to  state,  in  this  place, 
the  positive  provisions  of  law,  with  respect  to  the 
violation  of  those  duties.  We  shall  now  proceed  to 
examine  those  Acts  of  Congress  which  have  provided 
for  the  protection  of  seamen ;  and  this  leads  us  to 
consider  the  second  division  of  our  subject. 

II.    OF  THE  SEAAVOIITHINESS  OF  THE  VESSEL. 

27.  The  cupidity  or  recklessness  of  owners  might 
induce  them  to  send  their  vessels  to  sea  in  a  condi- 
tion to  jeopard  the  lives  of  the  crew.  To  prevent 
this,  Congress  has  wisely  placed  the  guardianship 
of  their  safety  and  security  in  the  hands  of  the 
seamen  themselves.  The  Act  of  1790  provides,  that 
if  a  ship  bound  on  a  foreign  voyage,  after  the  voyage 
is  begun,  and  before  leaving  the  land,  is  found  too 
leaky,  or  otherwise  unfit  to  proceed  on  the  voyage 
in  her  crew  or  equipments,  the  mate,  or  first  officer, 
and  a  majority  of  the  crew,  may  require  the  ship  to 
stop  at  the  first  convenient  port,  and  have  the  ship 
surveyed ;  and,  if  necessary,  fully  equipped  and  re- 
paired, under  the  direction  of  the  District  Judge  or 
a  Justice  of  the  Peace.' 

'  Sec.  3.  ''That  if  the  mate,  or  first  officer  under  the  master, 
and  a  majority  of  the  crew  of  any  ship  or  vessel,  bound  on  a 


OF  THE  SEATTORTHINESS  OF  THE  VESSEL.  63 

28.  By  the  general  maritime  law,  the  master  im- 
pliedly agrees,  that  at  the  commencement  of  a  voyage, 


voyage  to  any  foreign  port,  shall,  after  the  voyage  is  begun  (and 
before  the  ship  or  vessel  shall  have  left  the  land)  discover  that 
the  said  ship  or  vessel  is  too  leaky,  or  is  otherwise  unfit  in  her 
crew,  body,  tackle,  apparel,  furniture,  provisions,  or  stores,  to 
proceed  on  the  intended  voyage,  and  shall  require  such  unfitness 
to  be  inquired  into,  the  master  or  commander  shall,  upon  the  re- 
quest of  the  said  mate  (or  other  officer)  and  such  majority,  forth- 
with proceed  to  or  stop  at  the  nearest  or  most  convenient  port  or 
place  where  such  inquiry  can  be  made,  and  shall  then  apply  to 
the  Judge  of  the  District  Court,  if  he  shall  there  reside,  or  if  not, 
to  some  Justice  of  the  Peace  of  the  city,  town,  or  place,  taking 
with  him  two  or  more  of  the  said  crew  who  shall  have  made  such 
request;  and  thereupon  such  Judge  or  Justice  is  hereby  authorized 
and  required  to  issue  his  precept,  directed  to  three  persons  in  the 
neighborhood,  the  most  skilful  in  maritime  aifairs  that  can  be  pro- 
cured, requiring  them  to  repair  on  board  such  ship  or  vessel,  and 
to  examine  the  same,  in  respect  to  the  defects  and  insufficiencies 
complained  of,  and  to  make  report  to  him,  the  said  Judge  or  Jus- 
tice, in  writing,  under  their  hands,  or  the  hands  of  two  of  them, 
whether  in  any  or  in  what  respect,  the  said  ship  or  vessel  is  unfit 
to  proceed  on  the  intended  voyage,  and  what  addition  of  men, 
provisions,  or  stores,  or  what  repairs  or  alterations  in  the  body, 
tackle,  or  apparel,  will  be  necessary ;  and  upon  such  report,  the 
said  Judge   or  Justice   shall  adjudge   and  determine,   and  shall 
endorse  on  tlic  said  report  his  juilgnient,  whether  the  said  ship  or 
vessel  is  fit  to  proceed  on  tlie  intended  voyage;  and  if  not,  whether 
such  repairs  can  be  made,  or  deficiencies  supplied,  where  the  ship 
or  vessel  then  lays,  or  whether  it  be  necessary  for  the  said  ship  or 
vessel  to  return  to  the  port  from  whence  she  first  sailed,  to  be 
there  refitted ;  and  the  master  and  crew  shall  in   all   things  con- 
form to  tlie  said  judgment;  and  the  master  or  commander  shall, 
in  the  first  instance,  jiay  all  the  costs  of  such  view,  report,  and 
judgment,  to  be  taxed  and  allowed  on  a  fair  copy  thereof,  certified 
by  the  said  Judge  or  Justice,     liut  if  the  complaint  of  the  said 
crew  shall  appear,  upon  the  said  report  and  judgment,  (o  have 
been  without  foundation,  then  the  said  master,  or  the  owner  or 


64  THE    LAW    OF     STIimNG. 

the  ship  shall  ho  furnished  with  all  the  necessary 
and  customary  re(|uisitcs  for  navigation,  or,  as  the 
term  is,  shall  be  found  seaworthy,  and  that  the  ma- 
riners shall  be  supplied  with  good  and  sullicient 
provisions  whilst  tlie}^  are  in  his  service.  It  may 
not  be  either  necessary  or  proper,  that  the  owner  or 
master  should  exhibit  to  the  mariners  he  engages  a 
list  of  the  stores,  and  take  their  opinion  Avhether 
they  are  sufficient  or  not.  But  they  are  bound  to 
see  that  the  vessel  is  in  fact  seaworthy.  This  is  the 
obligation  imposed  upon  them  by  the  maritime  law. 
If  it  is  not  seaworthy,  and  the  mariners  make  com- 


assigncc  of  such  ship  or  vessel,  shall  deduct  the  amount  thereof, 
and  of  reasonable  damages  for  the  detention  (to  be  ascertained  by 
the  said  Judge  or  Justice)  out  of  the  wages  growing  due  to  the 
complaining  seamen  or  mariners.  And  if,  after  such  judgment, 
such  ship  or  vessel  is  fit  to  proceed  on  her  intended  voyage,  or 
after  procuring  such  men,  provisions,  stores,  repairs,  or  alterations, 
as  may  be  directed,  the  said  seamen  or  mariners,  or  cither  of 
them,  shall  refuse  to  proceed  on  the  voyage,  it  shall  and  may  bo 
lawful  for  any  Justice  of  the  Peace  to  commit,  by  warrant  under 
his  hand  and  seal,  every  such  seaman  or  mariner  (who  shall  so 
refuse)  to  the  common  jail  of  the  county,  there  to  remain  without 
bail  or  mainprize,  until  he  shall  have  paid  double  the  sum  ad- 
vanced to  him  at  the  time  of  subscribing  the  contract  for  the 
voyage,  together  with  such  reasonable  costs  as  shall  be  allowed  by 
the  said  Justice,  and  inserted  in  the  said  warrant,  and  the  surety 
or  sureties  of  such  seaman  or  mariner  (in  case  he  or  they  shall 
have  given  any)  slji^ll  remain  liable  for  such  payment;  nor  shall 
any  such  seaman  or  mariner  be  discharged  upon  any  writ  of 
haheas  corpus,  or  otherwise,  until  such  sum  be  paid  by  him  or 
them,  or  his  or  their  surety  or  sureties,  for  want  of  any  form  of 
commitment,  or  other  previous  proceedings :  Provided,  That  suffi- 
cient matter  shall  be  made  to  appear,  upon  the  return  of  such 
haheas  corpus  and  an  examination  then  to  be  had,  to  detain  him 
for  the  causes  hereinbefore  assigned."    Act  U.  S.  20th  July,  1790. 


OF  THE    SEAT70RTHINESS    OF    THE    VESSEL.     65 

plaint  at  tlie  commencement  of  the  voyage,  whilst 
it  is  in  the  power  of  the  master  to  procure  the  requi- 
site stores,  and  he  refuses  to  do  so,  they  may  leave 
the  ship/ 

29.  But  if  the  ship  proceeds  to  sea,  the  mariners 
are  bound  to  protect  her,  through  all  perils;  and 
their  entire  possible  service,  for  this  purpose,  is 
pledged  to  that  extent,  notwithstanding  deficiencies 
may  then  occur  or  be  discovered.^  If,  however,  the 
ship  is  clearly  unseaworthy  and  unfit  for  the  voyage, 
the  mariners  are  fully  justified  in  insisting  upon  her 
return  home  ;  and  they  are  guilty  of  no  offence,  if 
they  do  so.  The  law  deems  the  lives  of  all  persons 
far  more  valuable  than  any  property ;  and  will  not 
permit  a  master,  under  cover  of  his  acknowledged 
authority  on  board  of  the  ship,  from  rashness  or 
passion  or  ignorance,  to  hazard  the  lives  of  the  crew 
in  a  crazy  ship,  or  compel  them  to  encounter  risks 
and  perform  duties  which  are  so  imminent  and  over- 
whelming, that  they  can  escape  only  by  the  most 
extraordinary  chances,  and,  as  it  were,  by  miracu- 
lous exertions. 

80.  Tlie  proposition  cannot  for  a  moment  be 
maintained,  that  the  crew  are  bound  to  proceed  on 
the  voyage  in  an  unseaworthy  and  rotten  ,ship,  at 
the  imminent  hazard  of  their  lives,  merely  because 
the  master  and  officers  choose,  in  their  rashness  of 

'  Dixon  V.  The  Cyrus,  Peters'  Adm.  11.  407;  U.  S.  v.  Stuly, 
1  W.  &  M.  338. 

»  Tbirl. ;  The  Ncptuno,  1  Ilagg.  230;  The  Nimrod,  Waro'n  11.  1 ;. 
U.  S.  V.  Staly,  Kiijiru. 

6 


66  THE    LAW    OF    SHIPPING. 

jiidgmoiit,  to  proceed.  Tt  is  true,  that  in  all  cases  of 
doubt,  the  judgment  of  the  master  and  officers  ought 
to  have  great  weight ;  and  from  their  superior  intel- 
ligence, ability,  and  skill,  it  may  be  relied  on  with 
far  more  confidence  than  that  of  the  crew.  Still,  if 
the  case  does  occur ;  if  they  will  insist  on  proceed- 
ing, no  matter  at  what  hazard  to  life,  and  the  ship 
is  unseawortliy,  the  crew  have  a  right  to  resist  and 
refuse  obedience.  It  is  a  case  of  justifiable  self- 
defence  against  an  undue  exercise  of  power.  On  the 
other  hand,  if  it  should  appear  beyond  reasonable 
doubt,  that  the  ship  was  clearly  seaworthy,  the  sea- 
men, by  compelling  the  master  to  return  to  port,  are 
guilty  of  the  offence  "  of  an  endeavor  to  commit  a 
revolt."  But  if  they  act  bond  fide,  and  upon  reason- 
able grounds  and  apparent  unseaworthiness,  and  it 
is  doubtful  whether  the  vessel  be  imseaworthy  or 
not,  it  is  a  sufficient  defence  to  an  indictment  for 
that  offence.^ 

'  U.  S.  V.  Ashton,  2  Sum.  R.  13 ;  Porter  v.  Andrews,  9  Johns. 
R.  350;  The  Nimrod,  ut  supra;  Curtis's  Merchant  Seamen,  pp. 
23,  24.  "  In  the  case  of  Dixon  v.  The  Cyrus,  Judge  Peters  inti- 
mated," says  Mr.  Curtis,  "that  when  the  vessel  is  at  sea,  no 
defect  then  discovered,  and  nothing  but  an  absolute  inability  of 
the  ship — meaning,  I  presume,  a  state  of  things  amounting  to 
wreck — will  justify  the  seamen  in  quitting  her :  and  this  is  un- 
doubtedly true,  because  it  is  implied  in  that  principle  of  law  which 
binds  the  seamen'%)  the  vessel  through  all  perils  at  sea.  But 
where  the  vessel  is  in  a  foreign  port,  after  having  sailed  on  the 
outward  voyage,  whether  a  domestic  or  foreign  port,  and  un- 
seaworthiness of  a  dangerous  character  occurs  through  damage 
received  after  sailing,  can  the  seamen,  upon  principles  of  the 
general  maritime  law,  be  compelled  to  proceed  again  to  sea,  the 
master  refusing,  or  not  having  the  means,  to  make  the  proper 
repairs  ?     Upon  principle,  it  seems  to  me  very  clear  that  they 


OF  THE  SEATTORTHINESS  OF  THE  VESSEL.  67 

31.  The  Act  of  Congress,  therefore,  it  will  be  per- 
ceived, does  not  create  the  obhgation  of  the  owner 
and  master  to  have  the  ship  in  a  seaworthy  condi- 
tion, but  only  provides  the  mode  of  procedure,  on 
the  part  of  the  mariners,  when  it  is  discovered  not 
to  be  in  such  condition.  The  discovery  and  conse- 
quent proceedings,  however,  must  take  place  after 
the  voyage  has  begun,  and  before  the  vessel  has  left 
the  land.' 

32.  A  recent  Act  provides  for  the  mode  of  proce- 

cannot  be  bound  to  proceed.  The  Statute  of  1790  includes,  among 
the  causes  for  a  survey  before  the  vessel  leaves  on  her  outward 
voyage,  a  de6ciency  of  provisions ;  and  Lord  Stowell  once  held, 
that  a  serious  deficiency  of  provisions,  while  in  an  outward  port, 
justified  what  otherwise  would  have  been  a  desertion.  The  same 
high  authority  also  justified  a  desertion  on  the  ground  that  the 
master  had  altered  the  shipping  articles  in  a  foreign  port.  A  fur- 
tiori,  it  would  seem,  must  a  dangerous  deficiency  in  the  vessel  itself, 
in  port,  discharge  the  mariner's  contract,  if,  on  a  fair  remonstrance, 
the  master  does  not  make  the  necessary  repairs ;  for  it  can  never 
be  required  by  such  a  system  as  the  maritime  law,  that  this  con- 
tract should  imply  an  obligation  on  the  part  of  the  seamen  to 
expose  their  lives  to  perils  directly  referable  to  the  negligence  of 
the  owner  or  master,  when  the  vessel  is  not  at  sea."  Sec  also  the 
case  of  U.  S.  v.  Staly,  ut  supra. 

I  In  the  case  of  Porter  v.  Andrews,  supra,  the  vessel,  after  her 
departure,  sprung  aleak,  and  put  back  for  repairs,  which  were 
voluntarily  made  by  the  owners,  without  any  proceedings  being 
had  by  the  crew  according  to  the  third  si'(5tiou  of  the  Act  of 
Congress.  The  seamen,  upon  the  repairs  being  completed,  refused 
to  go  on  board  again,  upon  the  ground  th:it  the  repairs  were  insuf- 
ficient. IJut  it  was  held,  that  the  seamen  were  bound  to  return 
on  board,  it  not  appearing  that  the  vessel  was  in  fact  unscaworthy ; 
and  therefore,  not  liaving  done  so,  they  were  not  entitled  to  any 
wages.  If  they  meant  to  insist  on  their  rigiits  under  the  Act  ot 
('ongrcss,  they  should  have  instituted  the  proper  proceedings. 


68  THE    LAW    OF    siiirriNG. 

dure,  in  a  case  of  unseaworthiness,  in  a  foreign  port.* 
If  the  first  ofllcer,  or  the  second  and  third  officers, 
and  majority  of  the  crew  of  any  vessel,  shall  make 
complaint  in  writing  that  she  is  in  an  unsuitable 
condition  to  go  to  sea,  because  she  is  leaky,  or  insuf- 
ficiently supplied  with  sails,  rigging,  anchors,  or  any 
other  equipment,  or  that  the  crew  is  insufficient  to 
man  her,  or  that  her  provisions,  stores,  and  supplies, 
are  not,  or  have  not  been  during  the  voyage,  suffi- 
cient and  wholesome ;  thereupon,  in  all  such  cases, 
the  consul,  or  commercial  agent  who  may  discharge 
any  duties  of  a  consul,  shall  appoint  two  disinte- 
rested, competent,  practical  men,  acquainted  with 
maritime  affairs,  to  examine  into  the  causes  of  com- 
plaint, who  shall,  in  their  report,  state  what  defects 
and  deficiencies,  if  any,  they  find  to  be  well  founded, 
as  w^ell  as  what,  in  their  judgment,  ought  to  be  done 
to  put  the  vessel  in  order  for  the  continuance  of  her 
voyage.^ 

33.  The  inspectors  are  empowered  to  examine  the 
vessel,  and  whatever  is  aboard  of  her,  as  far  as  is 
pertinent  to  their  inquiry,  and  to  hear  and  receive 
any  other  proofs  which  the  ends  of  justice  may 
require.  Upon  receiving  their  report,  the  consul,  or 
commercial  agent,  may  approve  the  whole,  or  any 

'  Act  of  July  2toi,  1840;  see  Knowlton  v.  Boss,  12  Law  Rep. 
13,  as  to  rights  of  seamen  under  this  Act,  and  Hart  v.  The  Otis, 
Crabbe's  R.  52. 

3  Ibid.  sec.  12.  Amended  by  sec.  6,  of  the  Act  of  July  29, 1850, 
so  that  all  complaints  in  writing  to  the  consuls,  or  commercial 
agents,  as  therein  provided,  that  a  vessel  is  unscaworthy,  shall  be 
signed  by  tlw  first  or  (he  second  and  /hirrl  ojjirers,  &c.,  instead  of 
by  "any  officer,"  as  provided  in  sec.  12,  of  the  Act  of  1840. 


OF  THE  SEATTORTHINESS  OF  THE  VESSEL.  69 

part  of  it,  and  upon  so  doing,  is  bound  to  certify  such 
approval,  and  if  he  dissents,  he  must  certify  his  rea- 
son for  dissenting/ 

34.  The  inspectors  must  also  state  in  their  report, 
whether,  in  their  opinion,  the  vessel  was  sent  to  sea 
unsuitably  provided  in  any  important  or  essential 
particular,  by  neglect  or  design,  and  in  case  it  was 
by  neglect  or  design,  and  the  consul  or  commercial 
agent  approves  of  such  finding,  he  is  required  to  dis- 
charge such  of  the  crew  as  desire  it,  each  of  whom 
is  entitled  to  three  months'  pay  in  addition  to  his 
wages  to  the  time  of  discharge.  On  the  other  hand, 
if,  in  the  opinion  of  the  inspectors,  the  defects  or 
deficiencies  found  to  exist,  have  been  the  result  of 
mistake  or  accident,  and  would  not,  in  the  exercise 
of  ordinary  care,  have  been  known  and  provided 
against  before  the  sailing  of  the  vessel,  and  the  mas- 
ter, in  a  reasonable  time,  removes  or  remedies  the 
causes  of  complaint,  then  the  crew  are  bound  to 
remain  and  discharge  their  duty;  otherwise  they 
shall,  upon  their  request,  be  discharged,  and  receive 
each  one  montli's  wages  in  addition  to  the  pay  up  to 
the  time  of  discharge.^ 

'  Tl.id.  (Act  of  1840),  8CC.  13. 

^  Ibid.  Bcc.  11.  The  fifteenth  section  of  thg^Act  provides,  that 
the  ma.stcr  shall  pay  all  such  reasonable  cliaifl^s  in  llu;  premises 
as  shall  be  ofiioially  certified  to  him  under  the  hand  of  tlic  con- 
sul, or  other  commercial  agent;  but  in  case  the  inspectors  report 
that  the  complaint  is  without  any  good  and  suflicicnt  cause,  the 
master  may  retain  from  the  wages  of  the  complainants,  in  pro- 
portion to  the  pay  of  each,  the  amount  of  such  charges,  with 
Buch  reasonable  damages  for  detention   on  that  arrnmit,  as  the 


70  TIIK     LAW    or     SHIPPING. 

35.  By  the  Act  of  1845,  the  commanding  officer  of 
any  vessel,  squadron,  or  lleet  of  the  Navy  of  the 
United  States,  ^vhcn  upon  the  high  seas,  or  in  any 
foreign  port  where  there  is  no  resident  consul  of  the 
United  States,  is  authorized  and  empowered  to  exer- 
cise all  the  powers  of  a  consul  in  relation  to  mari- 
ners of  the  United  States. 


III.    OF  THE  SUPPLIES  REQUISITE  TO  BE  PUT  ON  BOARD. 

36.  To  insure  the  comfort  of  seamen,  and  regu- 
late the  general  duty  of  the  master  and  owners.  Con- 
gress has  provided  that  every  ship  bound  on  a  voyage 
across  the  Atlantic  Ocean,  shall  at  the  time  of  leav- 
ing the  last  port  from  whence  she  sails,  have  on 
board,  well  secured  under  deck,  at  least  sixty  gal- 
lons of  water,  one  hundred  pounds  of  salted  flesh 
meat,  and  one  hundred  pounds  of  wholesome  ship- 
bread,  for  every  person  on  board,  over  and  besides 
such  other  provisions,  stores,  and  live  stock,  as  shall 

consul,   or  other  commercial  agent,  directing  the  inquiry,  may 
officially  certify. 

The  sixteenth  section  provides,  that  the  crew  of  any  vessel  shall 
have  the  fullest  liberty  to  lay  their  complaints  before  the  consul, 
or  commercial  agent,  in  any  foreign  port,  and  shall  in  no  respect 
be  restrained  or  hindered  therein  by  the  master,  or  any  officer, 
unless  some  suffici^  and  valid  objection  exist  against  their  land- 
ing; in  which  case,  if  any  mariner  desire  to  see  the  consul,  or 
commercial  agent,  it  shall  be  the  duty  of  the  master  to  acquaint 
him  with  it  forthwith;  stating  the  reason  why  the  mariner  is  not 
permitted  to  land,  and  that  he  is  desired  to  come  on  board;  where- 
upon it  shall  be  the  duty  of  such  consul,  or  commercial  agent,  to 
repair  on  board  and  inquire  into  the  causes  of  the  complaint,  and 
to  proceed  thereon  as  this  Act  directs. 


SUPPLIES   REQUISITE    TO   BE    PUT   ON    BOARD.     71 

by  the  master  and  passengers  be  put  on  board ;  and 
in  like  proportion  for  shorter  or  longer  voyages. 
And  in  case  the  crew  of  any  ship  not  so  provided, 
shall  be  put  on  short  allowance  in  water,  flesh,  or 
bread,  during  the  voyage,  the  master  or  owner  shall 
pay  to  each  of  the  crew,  one  day's  wages  beyond  the 
wages  agreed  on,  for  every  day  they  shall  be  so  put 
to  that  allowance,  to  be  recovered  in  the  same  man- 
ner as  their  stipulated  wages. ^ 

37.  The  words,  "  for  longer  or  shorter  voyages," 
are  intended  to  extend  the  provisions  of  the  law  to 
all  other  voyages.  The  Act  is  not  exclusively  con- 
fined to  voyages  across  the  Atlantic  Ocean,  but  re- 
lates to  all  other  voyages  in  proportion  to  their 
duration.^  It  applies  also  as  well  to  seamen  shipped 
in  foreign  ports  as  to  seamen  engaged  in  the  United 
States.^ 

'  That  every  ship  or  vessel,  belonging  as  aforesaid,  bound  on  a 
voyage  across  the  Atlantic  Ocean,  shall,  at  the  time  of  leaving  the 
last  port  from  whence  she  sails,  have  on  board,  well  secured  under 
deck,  at  least  sixty  gallons  of  water,  one  hundred  pounds  of  salted 
flesh  meat,  and  one  hundred  pounds  of  wholesome  ship-bread,  for 
every  person  on  board  such  ship  or  vessel,  over  and  besides  such 
other  provisions,  stores,  and  live  stock,  as  shall,  by  the  master  or 
passengers,  be  put  on  board ;  and  in  like  proportion  for  shorter  or 
longer  voyages.  And  in  case  the  crew  of  any  iship  or  vessel,  which 
shall  not  have  been  so  provided,  shall  be  put  upon  short  allowance 
in  water,  flesh,  or  bread,  during  the  voyage,  the  master  or  owner 
of  such  ship  or  ves.scl,  shall  pay  to  each  of  the  crew,  one  day's 
wage."!  beyond  the  wages  agreed  on,  fur  every  day  they  shall  be  so 
put  to  that  allowance,  to  be  recovered  in  the  same  manner  as  tiicir 
stipulated  wages.     Act  U.  S.  20th  July,  1700,  eh.  W,  sec.  U. 

»  Curtin's  Merchant  Soanien,  p.  103. 

'  Gardner  v.  The  Sliip  Xuw  Jersey,  1  Peters'  Ad.  11.  -'23. 


72  THE     LAW     OF     SHIP  PING. 

38.  To  ostiiblisli  a  chiiiu  to  extra  wages  under  this 
Act,  it  must  appear  that  there  was  neghgence  in  the 
master  or  owner,  in  not  furnishing  the  ship  before 
her  departure  from  the  port,  with  the  quantity  and 
species  of  provisions  and  water,  required  by  law. 
They  are  not  answerable  for  accidents  happening  to 
them,  without  negligence  on  their  part.'  Hence, 
when  a  vessel  happens  to  be  in  a  port  where  it  is  not 
in  the  power  of  the  master  to  obtain  provisions  of 
the  amount  and  description  directed  by  the  law, 
other  articles  may  be  substituted  which  are  of  equi- 
valent value.  The  law  does  not  require  impossi- 
bilities.^ 

39.  When  the  crew  are  put  upon  an  allowance, 
and  there  is  a  controversy  whether  it  be  short  or 
not,  the  navy  ration  is  assumed  as  the  standard  of  a 
proper  allowance.  It  by  no  means  follows  that  be- 
cause the  provisions  on  board,  w^hether  of  the  required 
quantity  or  not,  are  dealt  out  in  fixed  and  limited 
quantities,  that  the  men  are  put  on  short  allowance. 
It  is  the  duty  of  the  master,  in  all  cases,  whether 
the  provisions  be  scanty  or  abundant,  to  oversee  and 
regulate  their  expenditure.  And  it  must  be  shown 
that  the  allowance  he  prescribes,  is  not  in  a  reason- 
able amount,  not  enough  for  the  ordinary  consumption 
of  man.  As  a  seaman  in  the  merchant  service  re- 
quires as  much  Tood  as  one  in  the  navy,  the  navy 
ration  has  therefore  been  assumed  as  the  standard 

'  The  Ship  Washington,  Id.  219;  The  Barque  Talent,  Crabbe's 
K.  21G.  There  must  be  both  a  deficiency  of  provisions  and  a  short 
allowance  in  order  to  claim  extra  wages. 

2  Ibid.  The  Mary,  Ware's  11.  459.  But  see  the  brig  Harriot, 
Bee's  Ad.  R.  80. 


SUPPLIES    REQUISITE    TO    BE    PUT    ON    BOARD.    73 

by  which  the  allowance  in  the   merchant  service 
ought  to  be  regulated.^ 

40.  If  the  master,  upon  falling  in  with  another 
vessel  at  sea  in  distress,  supplies  her  with  provisions, 
and  is  thus  compelled  to  put  his  own  crew  on  short 
allowance,  he  would  not,  upon  any  principle  of  jus- 
tice or  sound  policy,  be  liable  to  the  statute  penalty 
of  extra  wages.  And  we  cannot  perceive  that  he 
would  incur  the  liability,  even  if  he  should  receive 
from  the  distressed  ship,  compensation  for  the  provi- 
sions. He  is  bound  by  every  sentiment  of  humanity 
to  relieve  the  distressed.  It  is  an  obligation  thrown 
upon  him  by  the  law  of  nature,  and  recognised  by 
the  laAV  of  man.  In  doing  so,  he  deprives  himself  of 
the  means  of  giving  to  the  seamen  their  full  allow- 
ance. The  compensation  wliich  he  receives,  does 
not  enable  him  to  supply  the  ship  with  the  provi- 
sions with  wliich  lie  has  parted.  So  that  it  is  imma- 
terial to  the  seamen  whether  he  receives  compensa- 
tion or  not.  Besides,  he  complies  with  the  require- 
ment of  the  statute.  AVhen  the  ship  sails,  she  is 
supplied  with  the  requisite  quantity  of  provisions. 
During  the  voyage,  under  the  compulsion  of  law, 
at  the  imperative  call  of  humanity  and  duty,  he 
relieves  the  necessities  of  a  suflering  ship,  and   is 

'  The  Mary,  supra.  Mr.  Curtis  (Mcrclianfc  Scaincu,  p.  105) 
propounds  tliis  query  :  "  lu  the  case  of  a  vessel  going  to  a  port 
voluntarily,  where  bread,  it  is  known,  cannot  ordinarily  be  ob- 
tained, would  it  not  be  (jroax  iirrjiiyeiicc  in  the  master  not  to  take 
a  full  supply  of  bread  at  the  port  of  departure?  Inipnssibility  in 
such  cases  cannot  apply  as  an  excuse,  when  it  ought,  in  havr  hem 
foreseen  and  provided  against."  This  is  undoubtedly  the  correct 
view  of  the  subject. 


74  TITE    LAW    OF    siiirriNG. 

thus  compelled  to  put  his  own  crew  upon  short  al- 
lowance. By  so  doing  he  certainly  incurs  no  penalty, 
even  if  he  is  paid  for  the  provisions.  All  that  could, 
with  any  show  of  reason,  be  demanded  of  him  in 
such  a  case,  would  be  compensation  for  the  difference 
in  value,  between  the  short  allowance  and  the  cus- 
tomary ration,  or  a  division  among  the  crew  of  the 
sum  which  he  received.^ 


IV.    OF  THE  MEDICINE  CHEST. 


41.  As  the  law  formerly  stood,  and  still  stands  in 
the  general  maritime  law,  a  seaman  when  he  re- 
ceived any  injury  while  in  the  service  of  the  ship, 
or  became  sick  during  the  voyage,  and  the  sickness 
was  not  occasioned  by  his  own  fault,  was  entitled  to 
be  cured  at  the  expense  of  the  vessel.  The  whole 
expense  of  his  sickness,  that  for  medical  advice  and 
attendance,  as  well  as  other  expenses,  whether  he 
remained  on  board  or  was  put  on  shore,  was  a  charge 
on  the  ship.  This  principle,  which  makes  the  ex- 
penses of  the  sickness  of  any  of  the  crew  a  charge  on 
the  vessel,  is  adopted  as  customary  law,  or  incorpo- 
rated in  their  maritime  codes  by  nearly  every  nation 
of  Europe.  It  has  been  established  among  the  usages 
and  customs  of  the  sea,  from  the  earliest  epoch  to 
which  can  be  traced  the  elements  of  the  existing 
maritime  law  of  the  great  commercial  commonwealth 

'  Vide  Curtis's  Merchant  Seamen,  pp.  103,  104.  To  justify  a 
seaman  in  leaving  liis  ship  in  a  foreign  port,  because  of  the  bad 
provisions  supplied,  the  case  must  be  very  clear  in  point  of  fact, 
and  the  provisions  must  be  not  merely  not  of  the  best,  but  posi- 
tively bad  and  unfit  for  the  men's  support.  The  Washington, 
Crabbe's  E.  204. 


OF    THE     MEDICINE     CHEST.  75 

of  Christendom.  It  is  found  in  nearly  all  those 
early  digests  of  maritime  law,  which  in  various  places 
were  made  for  the  regulation  and  government  of 
maritime  commerce  during  the  middle  ages.  It  is 
not  questioned  that  this  ancient  principle  has  been 
adopted  as  part  of  the  maritime  law  of  this  country.' 

42.  It  is  provided  by  Act  of  Congress'  that  every 
ship  or  vessel,  belonging  to  a  citizen  or  citizens  of 
the  United  States,  of  the  burden  of  one  hundred  and 
fifty  tons  or  upwards,  navigated  by  ten  or  more  per- 
sons in  the  whole,  and  bound  on  a  voyage  without 
the  limits  of  the  United  States,  shall  be  provided 
with  a  chest  of  medicines,  put  up  by  some  apothe- 
cary of  known  reputation,  and  accompanied  by  di- 
rections for  administering  the  same ;  and  the  said 
medicines  shall  be  examined  by  the  same  or  some 
other  apothecary,  once,  at  least,  in  every  year,  and 
supplied  with  fresh  medicines  in  the  place  of  such 
as  shall  have  been  used  or  spoiled ;  and  in  defiiult  of 
having  such  medicine  chest  so  provided,  and  kept  fit 
for  use,  the  master  or  commander  of  such  ship  or 
vessel  shall  provide  and  pay  for  all  such  advice,  me- 
dicine, or  attendance  of  physicians,  as  any  of  the 
crew  shall  stand  in  need  of  in  case  of  sickness,  at 

'The  Forest,  Ware's  R.  421  j  Harden  v.  Cordon,  2  Mason's 
R.  541  ;  Lauison  v.  Wcstcott,  1  Sum.  150,  595;  The  Ship  Nep- 
tune, 1  I'eters'  Ad.  R.  152;  Id.  25G;  Reed  v.  CanfieM,  1  Sum. 
105;  The  Brig  George,  Id.  151. 

'  Act  of  July  20th,  17!)0,  sec.  8.  The  provisions  of  this  statute 
by  the  Act  of  March  2,  1805,  arc  extended  to  ves.scls  of  seventy- 
five  tons  or  upwards,  navigated  with  six  persons,  or  njore,  in  tlic 
whole,  bound  from  the  United  States  to  any  port  or  ports  in  the 
West  Indies. 


76  THE    LATP-    OF    SHIPPING. 

every  port  or  place  where  the  ship  or  vessel  may 
touch  or  trade  at  ilurhig  the  voyage,  without  any 
deduct  ion  from  the  wages  of  such  sick  seaman  or 
mariner. 

43.  The  question  here  arises,  whether  the  Act  of 
Congress  which  we  have  recited,  was  intended  as  a 
benefit  to  the  mariner  or  as  a  measure  of  relief  to 
the  ship-owner ;  a  deprivation  to  the  mariner  of  an 
advantage,  which  the  law  before  allowed  him,  or  an 
additional  security  for  his  health  and  comfort.  "  The 
latter  is  certainly  the  inference  which  would  natu- 
rally arise  from  the  terms  in  which  the  law  is  ex- 
pressed. It  imposes  on  owners  a  new  obligation,  to 
which  they  were  not  subject  by  the  maritime  law, 
without  liberating  them  in  its  terms  from  any  liabili- 
ties to  which  they  were  subject  before.  And  it  pro- 
fessedly subjects  the  master,  within  the  range  of 
whose  peculiar  duty  it  would  be  to  see  that  the  law 
is  complied  with,  to  a  personal  liability  in  case  it  is 
not ;  to  which  it  may  have  been  doubted  whether 
he  was  subject  by  the  general  maritime  law.  For 
though  there  could  be  no  doubt  of  the  liability  of  the 
master  for  wages  upon  the  ground  of  the  contract,  it 
midit  not  have  been  deemed  so  certain  that  he  was 
liable  for  the  extraordinary  expense  of  sickness  of 
the  crew,  a  liability  not  resulting  from  the  terms  of 
the  contract,  but  imposed  on  the  owners  by  the 
policy  of  the  law."^ 

'  Ware,  J.  in  the  case  of  The  Forest,  Ware's  R.  420,  422.  See 
also,  to  the  same  eifect,  Harden  v.  Gordon,  2  Mason's  R.  541. 
But  see  Holmes  v.  Hutchinson,  Gilpin's  R.  447. 


OF    THE    MEDICINE    CHEST.  77 

44.  But  however  strong  the  argument  in  favor  of 
the  construction  of  the  statute  that  we  have  here 
mentioned  may  be,  a  contrary  construction  was  early 
adopted,  and  the  owners  have  been  held  exempt 
from  their  Hability  for  medical  advice  and  atten- 
dance, in  case  a  medicine  chest  was  provided  in  com- 
pliance with  the  law.  To  this  extent  the  Act  has 
been  held  to  be  an  implied  repeal  of  the  pre-existing 
law.  The  medicine  chest,  with  the  directions  for 
the  use  of  the  medicine,  is  held  to  be  a  substitute  for 
the  advice  of  a  physician.  But  even  upon  this  con- 
struction of  the  statute,  great  doubts  have  been  ex- 
pressed whether  it  ought  to  be  extended  to  exempt 
the  owners  from  the  charge  for  medical  advice  in 
cases  of  dangerous  and  malignant  disease.^ 

45.  And  it  has  been  expressly  held  that  the  Act 
is  inapplicable  to  cases,  where  the  seamen  are  sent 
on  shore  for  the  safety  or  convenience  of  the  ship, 
whether  with  or  without  their  consent,  if  they  do 
not  draw  their  medicine  from  the  chest,  or  use  the 
medical  directions,  and  in  all  such  cases  the  mari- 
time law  remains  in  full  force.^     "  The  regulation  of 

•  The  Forest,  Ware's  R.  423. 

«  Harden  v.  Gordon,  supra,  1  Sura.  150,  495;  1  Peters'  Ad.  R. 
250.  In  the  case  of  The  Brig  George,  1  Sura.  153,  Judge  Story, 
referring  to  the  case  of  Harden  v.  Gordon,  says  :  "  I  had  then  and 
continue  to  liave  great  doubt,  wlicther  the  Act  of  Congress  ought 
to  have  been  allowed  to  have  any  operation  as  an  exception  out  of 
the  maritime  law,  and  whether  the  provision  for  a  proper  racdicine 
chest  was  not  nicrtly  directory,  and  the  omission  made  penal  upon 
the  master  personally,  without  the  slightest  intention  on  tiie  part 
of  Congress  to  interfere  with  the  general  duties  and  responsibilities 
of  the  owners,  created  by  the  maritime  law." 


78  THE    LAAr    OF    SITIPPING. 

the  statute  is  limited  to  tlie  ordinary  cases  of  illness 
on  board  the  ship,  a  sickness  of  such  a  character 
that  the  patient  may  be  and  is  kept  on  board,  and 
receives,  or  may  receive,  the  benefit  of  the  medicine 
chest,  and  the  directions,  and  the  advice  and  assis- 
tance of  the  master  of  the  ship,  or  some  other  cora- 
jDctent  person  attached  to  the  ship,  in  the  applicar 
tion  of  the  medical  directions  accompanying  the 
chest,  and  such  nursing  and  attendance  as  the  situa- 
tion of  the  ship  may  admit." 

46.  "When  the  circumstances  of  the  case,  and  es- 
pecially the  hazard  arising  from  a  malignant  and 
contagious  disorder,  render  it  necessary  or  expedient 
to  put  the  patient  on  shore,  not  merely  for  his  greater 
benefit,  but  for  the  general  interest  of  the  voyage, 
there  is  presented  a  case  which  is  not  within  the  fair 
meaning  of  the  statute,  and  must  be  governed  by  the 
general  principles  of  maritime  law  applicable  to  the 
circumstances  of  the  case.     There  is  a  class  of  cases 
that  might  be  mentioned,  coming  within  the  general 
aspect  of  the  law,  and  yet  not  within  its  fair  intent. 
Such  are  the  cases  requiring  surgical  skill  and  assis- 
tance, a  dislocation  or  a  fracture,  in  which  the  me- 
dicine chest  and  its  directions,  with  all  the  assistance 
and  intelligence  of  the  master,  or  of  any  one  belong- 
ing to  the  ship,  would  be  of  no  avail.     Such  disasters 
are  not  unfrequent  in  the  various  manoeuvres  on 
board  a  ship.     That  the  unfortunate  subject  of  them 
shall  be  cured  at  the  expense  of  the  ship  is  expressly 
provided  in  all  the  marine  codes,  old  and  new,  and 
in  a  distinct  article  from  the  provisions  respecting 
seamen  falling  sick.     It  may  be  reasonably  doubted, 


OF     THE     MEDICINE     CHEST.  79 

■whether  it  was  intended  to  repeal  the  general  law 
on  this  subject,  in  such  a  contingency,  by  the  provi- 
sion respecting  a  medicine  chest,  from  which,  from 
the  nature  of  the  case  supposed,  the  sufferer  could 
have  no  relief."^ 

47.  To  exempt  the  owners,  then,  from  the  charge 
for  medical  advice  and  attendance,  it  must  appear 
not  only  that  the  chest  of  medicines  w^ith  proper  di- 
rections for  their  use  was  provided,  but  also  that  the 
seamen  had  the  benefit  of  the  medicine,  adminis- 
tered under  the  printed  directions  for  its  use  by  the 
master,  or  some  other  person  fit  to  be  intrusted  with 
so  delicate  a  duty.  If  the  medicine  chest  is  inacces- 
sible to  the  seamen,  it  is  the  same  thing  to  them  as 
though  none  were  provided.  If  the  medicine  chest 
is  deemed  by  the  law  a  substitute  and  an  equiva- 
lent for  the  advice  of  a  physician,  it  can  only  be  so 
when  the  seaman  can  have  the  use  of  it,  safely  and 
properly  administered.  lie  does  not  have  the  ad- 
vantage of  the  medicine,  when  there  is  no  person  on 
board  by  whom  it  can  be  administered,  or  what 
amounts  to  the  same  thing,  no  person  of  such  intel- 
ligence and  discretion,  that  it  would  be  safe  to  in- 
trust him  with  a  duty  of  so  much  delicacy  and  re- 
sponsibility. There  would  be  no  safety  in  sending 
a  common  sailor  to  the  medicine  chest,  with  the 
printed  directions,  to  serve  out  medicine  to  a  patient 
laboring  under  a  disease  of  such  violence  for  example 
as  the  yellow  fever. 


»  Davis,  J.  in  The  Ship  George,  1  Sum,  505.  Sec  also  Holmes 
V.  IIutchinHOii,  1  (Jilpin's  II.  447  ;  Curtis's  Merchant  Seamen,  pp. 
113,  115;  Harden  v.  Gordon,  2  Mason's  R.  541. 


so  THE     LAW    OF     SIIirPING. 

48.  Therefore,  in  all  cases  where  the  seaman  can- 
not have  the  benefit  of  the  medicine,  whether  it  be 
because  he  is  removed  ashore,  or  because  there  is  no 
one  on  board  the  vessel  by  whom  the  medicine  can 
be  safely  administered,  the  expense  of  medical  advice 
must  be  at  the  charge  of  the  ship.*     But  in  the  case 

'  The  Forest,  Ware's  R.  420.  In  this  case,  the  master,  mate, 
and  four  of  the  seamen,  were  sick  with  the  yellow  fever  at  the 
same  time.  Judge  Ware  justly  considered  that  in  so  malignant  a 
disease,  where  there  would  be  no  safety  in  sending  a  common 
sailor  to  the  medicine  chest  with  the  printed  directions,  to  serve 
out  the  medicines,  the  benefits  of  the  medicine  chest  and  the 
directions  were  really  inaccessible  to  the  mariner,  and  could  not, 
therefore,  be  held  to  answer  the  purpose  of  a  substitute  for  regular 
medical  advice,  if  that  is  to  be  regarded  as  the  purpose  of  the 
statute.  But  suppose  the  disease,  whether  infectious  or  not,  is 
of  such  dangerous  character  that  neither  the  master,  however  in- 
telligent, nor  any  other  person  on  board,  can  with  safety  adminis- 
ter the  medicine  provided  by  the  ship,  is  not  the  medicine  chest  in 
such  a  case  as  really  inaccessible  to  the  seaman  as  in  a  case  where 
the  master  and  mate  being  sick,  there  is  no  one  on  board  but  a 
common  sailor  to  administer  the  medicines  ?  But  see  contra,  Pray 
V.  Stinson,  21  Maine  R.  402. 

In  the  case  of  Holmes  v.  Hutchinson,  Gilpin's  R.  447,  Judge 
Hopkinson  comments  at  length  upon  the  remarks  made  by  Judge 
Peters  in  the  cases  of  Walton  v.  The  Neptune,  and  Hastings  v. 
The  Happy  Return  (Peters'  R.  152,  250).  In  the  latter  case. 
Judge  Peters  says  :  "  When  one  of  a  crew  is  seized  with  an  infec- 
tious disease,  he  should  be  removed  from  the  rest  and  put  on 
shore  at  the  ship's  expense,  for  the  safety  of  the  whole  and  the 
advantage  of  the  owner,  who  must  count  on  extra  disbursements 
if  he  will  trade  to  ports  or  places  liable  to  such  casualties."  He 
adds,  that  it  ought  to  be  borne  by  the  ship,  "  from  motives  both  of 
humanity  and  justice."  Judge  Hopkinson  quotes  this  language, 
and  observes  :  "  This  is  well  when  the  sick  man  is  taken  from  the 
ship  for  the  safety  of  the  crew  and  the  advantage  of  the  owner, 
but  I  do  not  feel  the  force  of  any  claim  on  the  part  of  the  seaman, 
because  the  vessel  is  trading  to  a  port  or  place  liable  to  dangerous 


OF    THE    MEDICINE    CHEST.  81 

of  an  ordinary  sickness,  not  infectious*  or  dangerous 
to  the  crew,  so  as  to  render  a  removal  from  the  ship 
prudent  or  necessary,  and  when  no  such  removal  is 
made,  and  the  ship  is  provided  with  a  medicine  chest, 
according  to  the  directions  of  the  Act  of  Congress, 
the  medical  advice  of  the  sick  seaman  is  not  charge- 
able to  the  ship.^  And  the  same  result  follows  when 
the  seaman  is  taken  on  shore  at  his  own  solicitation, 
it  not  being  for  the  convenience  of  the  ship,  and 


diseases.     This  he  knew  when  he  made  his  contract,  and  if  it  ex- 
posed him  to  extra  expenses,  as  well  as  risk,  it  may  be  presumed 
that  he  took  them   into  his  calculation  in  fixing  the  price  of  his 
services,  the  amount  of  his  wages.      In  this  way,  the  owner  has 
paid  extra  disbursements  for  this  danger  and  these  expenses.    We 
shall  have  a  very  uncertain  rule,  if  the  legality  of  this  charge 
upon  the  owners  of  a  vessel  is  to  be  governed  or  regulated  by  the 
healthiness  of  the  trade   in  which   she  may  be  employed,  or  the 
places  to  which  she  may  go.     In   the   conclusion  of  the  Judgc'« 
ob-servations,  he  says  :     "  Although,  in  ordinary  cases,  having  a 
tnedicinc  chest  on  board  may  be  a  compliance  with  the  Act  of  Con- 
gress, exceptions  should  be  made  where  dangerous  diseases  require 
and  compel  extraordinary  remedies  and  expense."     By  dangerous 
diseases  we  must  understand  such  as  had  been  previously  men- 
tioned by  the  Judge — that  is,  infectious  diseases,  dangerous  to  the 
rest  of  the  crew,  and  not  merely  dangerous  to  the  person  afflicted  ; 
for  in  the  latter  sense  every  disease  might  be  included,  according 
to  its  violence  and  the  con-stitution  of  the  patient.     "  It  will  hardly 
do  for  judicial  tribunals  to  take  upon  themselves  to  establish  one 
invariable  rule  for  the  treatment  of  a  sick   seaman  sinking  under 
an   infectious  or   other  disease,  instead  of  leaving  it  to  be  deter- 
mined,  according  to  the  circuuistanccs  attending   such   case,  by 
those  to  whom  the  law  has  intrusted   that  duty.     There  may  be 
ports  and  places  in  which  it  would  be  most  inhuman  to  remove  a 
seaman,  seized  with  an  infectious  di.seasc,  on  shore."     Pray  v. 
Stinson,  21  Maine,  407. 

'  Holmes  V.  Hutchinson,  Gilpin's  II.  I  17. 

6 


82  THE    LAAV    OF    SIIimNG. 

the  ship  being  properly  provided  with  a  medicine 
chest/ 

49.  In  the  case  of  Pray  v.  Stinson/  it  was  held, 
that  when  it  is  a  proper  case  for  medical  advice,  and 
a  physician  is  called,  because  the  danger  is  such  that 
the  laws  of  the  place,  as  well  as  the  feelings  of  hu- 
manity, require  that  he  should  be,  the  law  will 
imply  a  promise  from  him  who  has  received  the 
benefit  of  the  services,  to  pay  for  them.  And  if  in 
such  a  case,  by  the  laws  of  the  port,  the  physician's 
bill  must  be  paid  by  the  vessel  before  she  can  leave 
the  port,  the  amount  must  be  considered  as  paid  for 
the  seaman,  and  therefore  liable  to  be  deducted  from 
his  wages.  The  vessel  is  regarded  by  the  maritime 
law  as  the  seaman's  debtor,  and  the  account  is  to  be 
adjusted  between  them,  by  considering  what  she  has 
paid  for  his  use,  which  will  go,  pro  tanto,  to  extin- 
guish his  claim.^ 

50.  A  mate  succeeding  to  the  command  of  the 
ship  upon  the  death  or  disability  of  the  master,  is 
entitled  to  be  cured  at  the  expense  of  the  ship  in 
the  same  manner  as  a  seaman.  And  hence,  if  he  is 
put  on  shore  from  sickness  for  the  convenience  of  the 
ship,  his  expenses  for  medicines,  advice,  attendance, 
and  board,  are  to  be  borne  by  the  ship-owner.  In 
the  case  of  The  Brig  George,'  Judge  Story  expressed 


I  Pierce  v.  Patton,  Gilpin's  R.  435;  see  also  Pray  v.  Stinson, 
21  Maine,  402. 

«  21  Maine  Pt.  402 ;  vide  also  Holmes  v.  Ilutchiuson,  supra. 

=»  Ibid. 

*  1  Sum.  K.  151. 


OF     THE     MEDICINE     CHEST.  83 

the  opinion  that  the  nicoster  is  entitled  to  be  cured  at 
the  expense  of  the  ship.  He  could  perceive  no  dif- 
ference between  the  case  of  the  master  and  the  case 
of  any  of  the  other  officers,  or  crew  of  the  ship. 
The  interest  of  the  ship-owner,  he  said,  is  equally 
promoted  in  each  case  by  a  speedy  recovery  and 
return  to  duty  ;  and  the  benefit  is  even  of  a  higher 
nature,  both  for  the  ship  and  the  voyage.  The 
superintending  care  and  control  of  the  ship's  con- 
cerns, is  of  the  last  importance  to  the  interests  of  the 
owner. 

51.  He  did  not,  however,  directly  decide  the  point, 
for  he  held  in  the  case  before  him,  that  the  mate 
assuming  the  duties  of  master,  did  not  thereby 
become  actually  master.  He  did  not  cease  to  be 
mate,  but  the  law  threw  upon  him  cumulatively  the 
duties  of  master.  "  He  was  still  a  mate,  acting  as 
master ;  not  master,  but  quasi  master,  with  the  same 
general  powers  and  responsibilities  jwo  7iac  vice."^  It 
is  rather  difficult  to  see  how  a  subordinate  person,  ele- 
vated by  the  mandate,  as  it  were,  of  the  law,  to  the 
chief  command  of  the  vessel,  with  all  the  powers 
and  duties  of  the  office  thrown  upon  him,  can  be 
deemed  otherwise  than  as  master.  Tf  he  exercised 
the  powers  of  master  jvo  tempore  by  appointment  of 
the  ship-owner,  would  not  tlie  l:nv  di'oin  him  to  all 
intents  the  master,  suljject  to  all  the  ad\  antages  and 
disabilities,  if  any  there  be,  belonging  to  that  posi- 
tion ?      IIuw  then  is  the  result  chnuL^od,  if  he  oxer- 

"  Tl.i.l. 


84  THE  LAW  OF  snirpiNG. 

cises  tliosc  powers  pro  tempore  by  appointment  of  the 
law  ? 

52.  The  seaman  is  to  be  cured  for  injuries  and 
sickness  occurring  while  he  is  m  the  ship's  service. 
It  is  the  benefit  from  the  service  which  constitutes 
the  groundwork  of  the  claim.     And  there  is  no  dis- 
tinction, in  principle,  between  a  service  in  a  foreign 
and  home  port.     The  maritime  law  embraces  all 
sickness,  and  all  injuries,  sustained  in  the  service  of 
the  ship,  and  while  the  party  constitutes  one  of  her 
crew,  without  in  the  slightest  manner  alluding  to  any 
difference  between  their  occurring  in  a  home  or  in  a 
foreign  port,  upon  the  ocean,  or  upon  tide  w^aters.^ 
The  owners,  to  exempt  themselves  from  the  charge 
for  medical  advice,  must  prove  a  compliance  with 
the  statute,  namely,  that  a  medicine  chest  ^vas  on 
board,  furnished  with  suitable  medicines.     And  for 
this  purpose,  the  master  is  not  a  competent  witness. 
Whenever  the  sufficiency  of  the  medicine  chest  is 
called  in  question,  the  proof  required  would  be  the 
testimony  of  some  respectable  physician  who  had 
examined  it.^ 


'  But  see  contra  Reed  v.  Chapman,  2  Strange  R.  937 ;  The 
Favorite,  2  Hob.  Ad.  R.  232 ;  The  Brig  George,  1  Sum.  R.  151. 

2  Reed  v.  Canficld,  1  Sum.  R.  195. 

3  The  Nimrod,  Ware's  R.  9 ;  The  William  Harris,  Ibid.  367. 
In  case  of  sickness  by  his  own  fault,  the  seaman  is  not  entitled  to 
his  wages  during  the  time  he  does  not  do  duty,  and  is  liable  for 
the  expenses  of  his  subsistence ;  but  not  for  the  wages  paid  another 
man  in  his  place.     Johnson  v.  Iluckins,  G  Law  R.  311. 


85 


CHAPTER  III. 

OF  THE  MASTER'S  AUTHORITY  OVER  THE 
MARINERS. 

53.  In  all  that  is  said  under  this  head,  of  the 
master's  authority  over  the  seamen,  it  must  be  un- 
derstood that  by  the  statute  law  of  the  United  States, 
the  power  of  corporal  punishment,  or  punishment 
by  flogging,  is  done  away.  The  general  right  of 
inflicting  punishment,  however,  upon  an  oflending 
seaman,  remains.  It  exists  under  the  general  mari- 
time law.  The  Act  of  Congress  has  only  abolished 
a  particular  mode  of  punishment.' 

51.  The  authority  of  the  master  of  a  vessel  over 
his  ship's  crew,  while  it  Ijears  a  certain  analogy  to 
that  of  a  parent  and  schoolmaster,  stands  upon  very 
diflerent  reasons,  and  is  allowed  for  very  different  pur- 
poses. The  discipline  of  a  parent  has  relation  to 
the  whole  life  of  the  child,  and  his  future  well-being. 
That  of  a  captain  relates  to  the  voyage  only.  The 
service  in  which  he  is  employed  is  one  of  uncom- 
mon peril,  not  only  recpiiring  great  skill,  l)ut  often 
demanding  great  promptitude  of  decisicm  and  action, 


'Act  of  Sept.  28,  1850.  "ProvMed,  Tlml  flogf^ing  in  ihc 
navy,  and  on  l)oar(l  vessels  of  commerce,  be,  ami  tlic  same  is  Iicrc- 
by  abolished  from  and  alter  the  passafri'  nf  this  Act." 


86  THE    LAW    OF     SHIPPING. 

and  ailmitting  no  time  of  delay  for  doliberation,  rea- 
soning, or  expostulation.  Upon  him  is  imposed  the 
obligation  to  meet  and  provide  for  these  emergencies, 
and  if  there  is  not  an  instantaneous  obedience  to 
his  orders,  it  may  involve  the  loss  of  the  ship  and  all 
who  are  in  it. 

55.  The  law  invests  him,  therefore,  with  the 
absolute  power  of  command,  and  clothes  him  with 
all  the  authority  which  is  necessary  to  enforce 
prompt  obedience  to  his  orders.  The  office  of  mas- 
ter is  also  one  of  great  personal  responsibility.  He 
is  answerable  to  those  who  have  intrusted  their  pro- 
perty to  his  care,  for  losses  and  damages  which  may 
happen,  not  only  from  his  own  personal  faults  or 
neglect,  but  for  such  as  arise  from  the  negligence  or 
unfaithfulness  of  the  men  whom  he  employs.  The 
law  having  rendered  him  responsible  for  the  negli- 
gence and  misconduct  of  his  men,  has  given  him  a 
large  discretionary  authority  to  correct  such  miscon- 
duct in  a  summary  manner;  and  as  the  general 
security  of  the  vessel  and  cargo  depends  upon  the 
general  fidelity  of  the  crew  and  the  promptitude  of 
their  obedience,  it  authorizes  the  master  to  enforce 
that  fidelity  and  punctuality,  by  the  ministration  of 
punishment,  when  it  becomes  necessary  for  the 
maintenance  of  good  discipline.^  The  authority  of 
the  master  over  the  mariner,  is  in  no  just  sense 
of  a  military  character.  It  is  entirely  civil  in  its 
nature.^ 

1  Bangs  V.  Little,  Ware's  R.  510 ;  Ware,  J.  U.  S.  v.  Aldcn,  7 
Law  R.  4G9. 

'  U.  S.  V.  Hunt,  2  Story,  C.  C  R.  129. 


OF    THE    master's    AUTHORITY,    ETC.        87 

56.  He  possesses  in  extreme  cases,  such  as  a  dan- 
gerous mutiny,  the  power  perhaps  to  take  life,  or 
rather  he  may  be  justified  in  that  extreme  measure. 
But  for  simple  disobedience  of  orders,  he  must  not 
use  a  mode  of  punishment  that  would  be  perma- 
nently injurious  to  the  health  or  constitution  of  the 
seaman  upon  whom  it  is  inflicted.^ 

57.  When  the  propriety  and  legality  of  correction 
of  some  kind  is  made  to  appear,  the  burden  of  proof 
then  rests  upon  the  complaining  seaman,  to  show 
that  the  punishment,  under  all  the  circumstances  of 
the  case,  was  clearly  excessive.  For  the  law  has  not 
prescribed  any  precise  or  exact  measure  of  punish- 
ment. The  general  formulary  of  expression  is,  that 
the  punishment  must  be  moderate  and  reasonable. 
But  in  determining  the  question  of  moderation  and 
rea.sonableness,  a  court  of  justice  will  concede  some- 
thing to  the  excitement  of  the  occasion  under  which 
the  master  acts,  allow  some  consideration  to  the 
general  character  and  temper  of  the  man  who  is  the 
subject  of  punishment,  some  latitude  for  diilerences 
of  judgment,  and  will  presume  something  in  favor 
of  a  rightful  and  proper  exercise  of  discretion." 

'  U.  S.  V.  Aldcn,  siiprfi. 

«  IJutler  V.  McLellan,  Ware's  R.  219 ;  United  States  v.  Free- 
man, 4  Mason,  512.  "  It  is  doubtless  true,"  said  Judge  Story  in 
this  ca.so,  "  that  the  master  has  a  right  to  require  of  tlicni  (the 
crew)  a  prompt  and  ready  pcrfdrmance  of  duty,  and  an  habitual 
obedience  to  reasonable  commands  at  all  times.  The  safety  of 
the  ship  and  the  success  of  the  voyage,  essentially  depend  upon 
the  due  enforcement  of  this  right.  And  in  ]iroportion  as  the 
urgency  of  the  occasion  and  fhr  necessities  "I  tin'  sea  service, 
require  instant  compliance  with  such  command.s,  tin-  iluty  nf  the 


88  TIIK     LAW    OF    SHIPPING. 

58.  It  should  be  here  observed,  that  in  all  cases 
M'hich  will  admit  of  the  delay  proper  for  inquiry, 
due  inquiry  should  })recede  the  act  of  punishment ; 
and,  therefore,  that  the  party  charged  should  have 
the  benefit  of  that  rule  of  universal  justice,  of  being 
heard  in  his  own  defence.  A  punishment  inllicted 
without  the  allowance  of  such  benefit,  is  in  itself  a 
gross  violation  of  justice.  There  are  cases,  undoubt- 
edly, which  neither  require  nor  admit  of  such  a  de- 
liberate procedure.    Such  are  cases  where  the  criminal 

seaman  to  obey  becomes  more  pressing  and  obligatory.  If  obe- 
dience does  not  follow,  the  master  may  compel  it  by  punishment, 
and  the  nature  and  extent  of  the  punishment  must  be  decided 
by  the  exigency  of  the  case.  The  master  may  also  apply  punish- 
ment, by  way  of  correction,  for  past  as  well  as  present  offences, 
to  preserve  the  good  order  and  discipline  of  the  ship.  But  after 
all,  however  summary  or  strict  may  be  his  power,  it  is  not  un- 
limited, nor  is  it  to  be  exercised  in  an  arbitrary,  cruel,  or  revenge- 
ful manner.  The  authority  of  the  master  on  board  the  ship,  is 
nearly  allied  to  that  of  a  parent,  and  is  to  be  used  with  reasonable 
tenderness  and  humanity.  No  punishment  can  be  inflicted  unless 
for  reasonable  provocation  or  cause ;  and  it  must  be  moderate, 
and  just,  and  proportionate  to  the  nature  and  aggravation  of  the 
offence.  The  law  does  not  permit  the  master  to  gratify  a  brutal 
and  low  revenge,  or  to  inflict  cruel  and  unnecessary  punishments. 
It  allows  no  excess,  cither  in  the  mode,  or  the  nature,  or  the 
object  of  the  punishment.  It  upholds  the  exercise  of  the  autho- 
rity only  when  it  is  for  salutary  purposes,  not  when  it  arises 
from  personal  prejudice,  caprice,  or  dislike,  or  from  gross  and  vin- 
dictive passions.  In  every  case,  therefore,  where  punishment  is 
applied,  the  master  is  responsible,  both  civilly  and  criminally,  if 
he  wantonly  exceed  the  measure  of  justice."  See  also  Michael- 
son  v.  Denison,  3  Day's  llcp.  294  ;  Thorne  v.  White,  1  Peters' 
Ad.  R.  1G8;  2  Id.  420;  U.  S.  v.  Smith,  3  Wash.  C.  C.  R.  525; 
Turner's  case,  Ware's  II.  83  ;  Id.  53 ;  The  Agincourt,  1  Hagg. 
Ad.  R.  271 ;  Lowther  Castle,  Id.  384  j  Forbes  v.  Parsons,  Crabbe's 
R. 283. 


OF    THE    master's    AUTHORITY,     ETC.        89 

facts  expose  themselves  to  general  notoriety  by  the 
public  manner  in  which  they  are  committed,  or 
where  the  necessity  occurs  of  immediately  opposing 
attempted  acts  of  violence  by  a  prompt  reaction  of 
lawful  force,  as  in  the  disorders  of  a  commencing 
mutiny ;  these  are  cases  that  speak  for  themselves, 
and  are  of  unavoidable  dispensation.^ 

59.  It  is  also  proper  to  observe  in  this  place,  that 
a  Court  of  Admiralty,  in  estimating  the  defence  of 
the  master  to  a  cause  of  damage,  will  give  little 
weight  to  charges  of  misconduct  of  a  different  nature 
from  that  which  is  charged  as  the  justification  of  the 
punishment  complained  of  An  act  of  theft  will  not 
prove  a  habit  of  drunkenness;  if  an  act  of  mutiny- 
is  charged,  it  should  be  mutinous  conduct  of  a  former 
date  that  alone  can  be  invoked  with  propriety  to 
aggravate  the  charge  of  a  mutinous  disposition.  The 
antecedent  acts  which  are  charged  in  justification, 
must  be  allied  in  nature  to  the  act  which  is  the  im- 
mediate occasion  of  the  punishment.^ 

GO.  A  Court  of  Admiralty  will  presume  in  favor  of 

the  rightful  exercise  of  authority,  if  the  punishment 

is  inflicted  with  calmness  and  deliberation,  Ijut  the 

master  will  be  deprived  of  that  presumption,  if  the 

manner  and  the  occasion  savor  strongly  of  passion. 

When  that  is  shown,  the  Court  will  look  with  the 
i 

'  Tlic  Agincourt,  supra.  It  is  cnntrary  to  every  principle  of 
ju.sticc  for  a  captain  to  condemn  and  punish  a  seaman  the  iiionKMit 
he  i.s  complained  of  by  the  mate,  ami  witliuiit  :iiiy  investigation. 
Schehcr  v.  York,  Crabbc's  11.  44!J. 

»  Ibid. 


90  THE    LAW    OF    SHIPPING. 

most  jealous  scrutiny  into  the  justification  alleged. 
If  in  the  inlliction  of  merited  punishment  on  a  sea- 
man, unnecessary  and  unwarrantable  severity  is 
used,  and  an  injury  is  done  beyond  what  was  in- 
tended, though  happening  partly  from  misadventure, 
the  authors  of  it  will  be  held  answerable,  if  not  for 
vindictive  damages,  at  all  events  for  actual  pecuniary 
damages,  such  as  the  expense  of  cure  and  loss  of 
time  occasioned  by  the  injury.^ 

61.  When  the  crime  of  a  sailor  is  too  great  for 
the  master's  authority  to  punish,  the  master  and  his 
officers  should  seize  the  criminal,  put  him  in  irons,  or 
otherwise  safely  secure  him,  and  not  take  the  law  into 
their  own  hands,  but  bring  him  to  justice  on  their 
return.'  The  law  does  not  restrict  the  master's 
authority  to  personal  chastisement,  but  he  may  con- 
fine an  offending  seaman  on  board  the  ship.'' 

'  Morris  v.  Cornell,  6  Law  Rep.  304. 

2  Elwell  V.  Martin,  Ware's  R.  53. 

3  Thornc  v.  White,  1  Peters'  Ad.  R.  172. 

*  Ibid.  Wilson  V.  The  Mary,  1  Gilpin's  R.  31 ;  Joy  v.  Alray, 
1  W.  &  ]M.  262.  "The  master,"  said  Judge  Hopkinson,  in  the 
case  of  The  Mary,  supra,  "  may  confine  on  board  the  ship  a  re- 
fractory sailor;  he  may  stop  his  provisions;  he  may  inflict  rea- 
sonable personal  correction,  according  to  the  enormity  of  the 
offence  and  the  obstinacy  of  the  offender;  and,  if  he  be  incorri- 
gibly disobedient  or  mutinous,  he  may  discharge  him,  and  withal 
he  incurs  a  forfeiture  of  his  wages." 

'*  In  a  case  wherein  confinement  on  board  the  ship  of  two  dis- 
obedient seamen  appeared  to  me  proper  and  indispensable,  and 
where  frequent  endeavors  to  reclaim  were  ineffectually  tried,  for 
almost  the  whole  latter  section  of  the  return  voyage,  I  held  the 
confinement  in  irons  so  justifiable  and  necessary  for  the  safety  of 
the  ship,  that  I  refused  to  allow  wages  for  that  part  of  the  voyage. 


OF    THE    master's    AUTHORITY,     ETC.        91 

G2.  But  whatever  the  mode  of  correction,  it  must 
be  recollected  that  the  law  frowns  upon  all  punish- 
ments which  are  unusual  or  unjust.  It  counte- 
nances punishment,  but  not  cruelty.  It  has  been 
doubted  whether  the  master  may  confine  a  seaman 
for  any  cause,  in  a  prison  or  guard-ship  at  a  foreign 
port.  There  are  certainly  grave  objections  to  such 
a  procedure.  "  Many  seamen  have  perished  by  dis- 
eases and  hardships,  to  which  they  were  subjected 
in  loathsome  prisons  or  infected  ships ;  more  have 
been  rendered  wretched  and  incapable  of  further  ser- 
vice by  chronic  diseases,  or  the  consequences  of  acute 
disorders.'" 

63.  But  as  a  measure  of  precaution,  the  law  does 
authori/x'  imprisonment  on  shore  in  a  foreign  port. 
The  authority  arises,  and  can  be  exercised  only  in 
cases  of  flagrant  oflbnces,  where  there  is  a  positive 
necessity  of  removal  of  the  party  offending  from  the 
ship  to  some  place  of  safety  on  shore.  The  authority 
is  of  a  very  delicate  and  summary  nature,  and  is 
justified  only  by  the  same  necessities  which  clothe 
private  persons  in  other  cases  with  extraordinary 
powers. 

04.  Thus,  in  case  of  a  mutiny  in  port,  with  an  in- 
tent to  nmrder  the  officers  or  to  embezzle  the  cargo; 

The  two  Hcaincn  were  influential  characters,  and  atrocious  leaders 
of  a  rcbcllinus  crew.  They  had  not  misbehaved  on  the  former 
part  of  the  voyage,  T  considered  it  to  be  a  partial  breach  of  con- 
tract, and  not  a  forfeiture  in  toto."  Peters,  J.  (Peters'  Ad.  11. 
173,  note). 

'  1  Peters'  Ad.  K.  170,  note;  sec  the  Coriolanus,  Crabltc's  11. 
239. 


02  TIIK    LAW    OF    siiirriNCi. 

and  the  conspiracy  is  so  extensive  that  the  muti- 
neers cannot  be  suflered  to  remain  on  board,  but  at 
the  imminent  hazard  of  the  lives  of  the  olhcers  and 
the  property  on  board,  in  such  a  case,  by  the  eternal 
law  of  nature  itself,  the  master  has  the  right  to  re- 
move them  from  the  ship ;  and  to  imprison  them,  as 
well  for  punishment  as  safety,  if  he  does  not  choose, 
as  he  may,  to  dismiss  them  altogether  from  his  em- 
ployment. If  he  does  imprison,  it  must  be  with  in- 
tent to  take  them  on  board  again  for  the  voyage,  or 
to  bring  them  home ;  and  not  with  the  intent  merely 
to  punish  them,  and  at  the  same  time  to  dissolve 
their  connexion  with  the  ship.  The  master  can 
punish  only  to  promote  good  discipline,  and  compel 
obedience  to  lawful  orders  on  board  of  the  ship.  lie 
is  not  clothed  with  judicial  authority  to  sentence 
seamen  to  punishment  for  their  offences.^ 

»  U.  S.  V.  Rugglcs,  5  Mason,  192  ;  Ship  Moss,  Gilpin's  R.  219, 
233  ;  Wilson  v.  Brig  IMary,  lb.  31.  If  from  confinement  and  ex- 
posure in  a  jail,  tlirougli  the  instrumentality  of  the  master,  the 
seaman  should  lose  his  life,  without  justifiable  cause,  the  master 
is  responsible,  as  in  other  cases  of  homicide.  U.  S.  v.  lluggles, 
supra. 

If  the  imprisonment  of  a  seaman  in  a  foreign  port  is  improper, 
the  expenses  of  it,  or  of  the  employment  of  a  person  in  his  stead, 
are  not  to  be  deducted  from  his  wages.  It  is  no  justification  of 
the  improper  imprisonment,  or  of  any  other  illegal  act,  that  the 
master  acted  by  the  advice  of  an  American  consul.  Wilson  v. 
The  Brig  Mary,  snirra  ;  The  Otis,  Crabbe's  R.  52 ;  The  William 
Harris,  Ware's  R.  307  ;  Joy  v.  Almy,  1  Wood  &  M.  2G2.  In 
this  latter  case.  Judge  Woodbury  held,  that,  the  master  of  a  vessel 
is  not  justified  in  imprisoning  a  seaman  merely  on  suspicion  that 
he  is  a  dangerous  man,  or  on  the  request  of  the  crew,  unless  some 
facts  are  shown  rendering  the  truth  of  the  charge  probable,  and 
if  he  detain  hira  in  custody  till  liis  effects  on  board  are  lost  or  sold, 
the  master  is  answerable  for  their  value.     Damages  for  such  im- 


OF    THE    master's    AUTHORITY,    ETC.        93 

65.  The  arrest  and  imprisonment  of  a  seaman  in 
a  foreign  port,  and  sending  him  home  by  the  public 
authority  as  a  prisoner  charged  with  an  indictable 
offence,  does  not  necessarily  constitute  a  bar  to  a 
claim  for  wages  for  the  vo3'age.  Such  proceedings 
do  not  preclude  the  Court  from  inquiring  into  the 
merits  of  the  case,  and  making  such  a  decree  as  the 
justice  of  the  case  requires.^ 

60.  Ordinarily,  the  master  has  no  right  in  inflict- 
ing punishment  upon  a  mariner  for  misbehavior  to 
employ  deadly  weapons.  The  use  of  them  destroys 
the  implication  of  moderation,  which  is  the  extent 
of  the  master's  authority,  and  beyond  which,  if  he 
goes,  he  becomes  a  trespasser,  and  is  treated  as  such. 
We  are  now  speaking  of  the  ordinary  exercise  of 

prisonmcnt  will  not  be  vindictive,  unless  perhaps  when  the  mas- 
ter's motives  appear  to  have  been  bad.  But  compensation  for 
the  time  of  the  imprisonment,  the  value  of  his  articles  lost  or  sold, 
and  interest  on  the  amount  and  passage  home,  are  the  just  measure 
of  damages  usually. 

In  the  case  of  The  Brig  Mary,  supra,  Judge  Hopkinson,  with- 
out directly  deciding  the  general  question,  whether  the  master  of 
a  vessel  may,  under  any  circumstances,  imprison  a  seaman  in  the 
jail  of  a  foreign  port,  under  the  control  and  discipline  of  a  foreign 
police  and  its  officers,  for  the  mere  maintenance  of  his  own  autho- 
rity, observed,  that  the  practice  was  one  of  doubtful  legality.  "It 
is,"  he  said,  "  certainly  to  be  justified  only  by  a  strong  case  of  ne- 
cessity. It  is  not  among  the  ordinary  means  of  discipline  put  into 
the  hands  of  the  master.  I  am  inclined  to  think  there  should  be 
danger  in  keeping  the  offender  on  board,  or  some  great  crime  com- 
mitted, when  this  extreme  measure  is  resorted  to.  It  should  be 
used  as  one  of  safety  rather  than  discipline,  and  never  applied  as 
a  punishment  for  past  misconduct."  See  also  The  Coriolanus, 
Crabbc's  11.  2.'J!». 

'  Smith  V.  Treat,  Davics  II.  200. 


94  THE    LAW    OF    SIIirPING. 

nuthority.  But  in  subduing  an  insurrection  or  mu- 
tiny, any  Ibrce  requisite  may  be  used,  and  any  weapon 
which  the  occasion  may  require ;  because  in  such  a 
case  the  master  acts  on  the  defensive,  and  is  bound 
by  his  duty  at  all  hazards  to  reduce  the  crew  to 
order  and  discipline.'  But  if  without  any  disobedi- 
ence of  orders  or  resistance,  the  master  attacks  any 
of  the  crew  with  a  deadly  weapon,  he  may  be  dis- 
armed ;  and  upon  a  principle  common  to  the  whole 
animal  creation,  man  as  well  as  brute,  namely,  the 
right  of  repelling  unlawful  violence  threatened  and 
impending.^ 


1  Sampson  v.  Smith,  15  Mass.  R.  365 ;  U.  S.  v.  Peterson,  1  Wood. 
&  M.  311 ;  U.  S.  V.  Wickham,  1  Wash.  C.  C.  R.  316 ;  Fuller  v. 
Colby,  3  Wood.  &  M.  1,  14.  In  this  latter  case  it  was  said,  that 
such  weapons  might  be  used  as  are  necessary  to  effect  the  object, 
when  it  is  to  obtain  obedience,  and  not  to  punish  for  a  past  offence. 
Forbes  v.  Parsons,  Crabbe's  R.  283 ;  Scheltcr  v.  York,  Id.  449. 

2  U.  S.  V.  Peterson,  1  Wood.  &  M.  R.  311.  In  this  case.  Judge 
W^oodbury  observed,  that  the  very  same  Acts  of  Congress  which 
inflict  heavy  punishment  on  the  crew  for  dangerous  resistance  to 
the  master,  inflict  heavy  penalties  on  him  for  unjustifiable  blows, 
or  unusual  punishments,  or  iusufiicicnt  or  unwholesome  food ;  and 
a  seaman,  when  wronged  abroad,  can  always  rely  with  safety  on 
ample  redress  at  his  return  home,  through  the  laws,  and  the 
juries  and  the  judges  of  his  country.  It  behooves  him,  then,  with 
patience  and  order,  as  well  as  fidelity,  to  continue  to  discharge  his 
own  duties  to  the  laws  and  flag  of  the  Union,  convinced,  as  he 
should  be  unfalteringly,  that  none  will  be  allowed  to  violate  them 
with  impunity.  It  was  also  held  in  this  case,  that  foreign  seamen 
on  board  American  ships  arc  as  much  subject  to  punishment,  for 
such  disobedience  or  violence,  as  Americans,  and  are  alike  to  be 
protected  and  redressed  on  their  return  home.  To  render  a  vessel 
American,  so  as  to  punish  offences  on  board  of  her,  it  is  enough 
to  show,  that  slie  sailed  from  and  to  an  American  port,  and  was 
apparently  owned  and  controlled  by  citizens  of  the  United  States. 


OF    THE    master's    AUTHORITY,     ETC.        95 

67.  A  seaman  may  also,  in  extreme  cases,  resist 
the  master,  although  the  latter  may  not  employ 
deadly  weapons.  "  The  mariner,"  says  the  Conso- 
lato  del  Mare,'  "  is  bound  to  bear  with  the  master  if 
he  reproves  him  in  injurious  language;  and  if  he 
makes  an  assault  upon  him,  he  ought  to  fly  to  the 
prow,  and  put  himself  on  the  side  of  the  chains ; 
if  the  master  pursues  there,  he  ought  to  fly  to  the 
other  side ;  and  if  the  master  pursues  him  there,  he 
may  call  witnesses  and  stand  upon  his  defence." 
The  spirit  of  this  article  survives,  and  is  a  living 
principle  of  the  existing  maritime  law. 

68.  "It  is,  however,"  said  Judge  Ware,  in  the 
case  of  Carlton  v.  Davis,*  "only  in  very  extreme 
cases  that  a  seaman  can  be  justified  in  turning  upon 
the  master  and  resisting  him  with  force,  and  when 
he  can  protect  himself  from  a  dangerous  assault  in 
no  other  way.  Nothing  could  be  more  pernicious  to 
the  police  of  the  sea,  than  to  admit  that  a  seaman 
might,  as  a  general  rule,  resist  the  master  by  force, 
even  when  inflicting  undeserved  punishment.  It 
would  ])ii  sure  to  lead  to  numerous  scenes  of  violence 
and  insubordination,  and  endanger  all  authority. 
The  duty  of  a  seaman,  in  such  case,  is  to  submit  to 
wrong.  Tlie  nature  of  the  master's  authority,  which 
is  of  a  rjudJil  parental  character,  and  the  necessities 
of  the  service,  imperiously  require  it.  On  his  re- 
turn to  jinrf,  lio  may  appeal  ff)  llie  law  for  redress, 

'  Ch.  10.5  ;  see  nUn  .Ju-(,ui.jns  d'Oleron,  Art.  12,  Clcirac.  p.  4S ; 
Laws  of  \\'isbury,  Art.  20,  Ord.  dc  la  IMarinc,  liv.  2,  tit.  7, 
\'aliii,  ft.  r)5.'5 ;  Kincrigon,  TraitO  dc8  A.ssuranccs,  di.  1-,  f^ii  t.  0. 

"Davics'  K.  221. 


OC)  THK    LAW    OF    SHIPPING. 

ami  the  master  uill  be  held  to  strict  responsibility 
for  any  abuse  of  his  authority.  If  he  does  not  do 
this,  but  takes  jurisdiction  of  his  own  wrongs,  and 
seeks  redress  from  his  own  hands,  the  Courts  will  be 
slow  in  entertaining  his  complaint,  and  taking  juris- 
diction of  an  appeal  from  a  wager  of  battle,  even  if 
originally  he  had  just  grounds  of  complaint.  He 
may  be  in  danger  of  impairing  a  good  cause  of  action 
by  matter  ex  post  factor 

69.  When  the  offence  of  the  seaman  is  open  and 
manifest,  and  of  a  nature  to  require  punishment, 
and  no  delay  is  requisite  for  inquiry,  it  still  is  not 
necessary  that  the  punishment  should  be  inflicted  at 
the  very  instant  the  offence  is  committed.  It  may 
be  inflicted  for  past  offences  and  the  promotion  of 
good  discipline  on  board.  Besides,  if  inflicted  at  the 
very  moment  of  the  oflence,  it  will  be  in  the  heat 
of  blood,  and  may  be  attended  with  a  degree  of  rigor 
which  would  not  have  characterized  the  proceeding, 
perhaps,  in  a  cooler  moment.^ 

70.  The  sea  laws  enjoin  on  the  master  a  temperate 
demeanor,  and  orderly  and  decent  conduct,  towards 
seamen.  By  several  of  these  laws,  he  is  finable  for 
abusive  expressions  or  misconduct  towards  mariners. 
But  a  peremptory  or  harsh  tone,  or  an  overcharged 
manner,  in  the  exercise  of  authority,  will  never  be 
held  by  a  Court  of  Admiralty  to  justify  resistance. 
It  will  not  be  sufficient  that  there  has  been  a  want 
of  that  personal  attention  and  civility  which  usually 


^  Sampson  v.  Smith,  supra;  U.  S.  v.  Ruggles,  5  Mason,  192; 
U.  S.  V.  Peterson,  supra. 


OF    THE    master's    AUTHORITY,    ETC.        97 

takes  place  on  other  occasions,  and  might  be  wished 
generally  to  attend  the  exercise  of  authority.  The 
nature  of  the  service  requires  that  those  persons 
who  engage  in  it  should  accommodate  themselves  to 
the  circumstances  attending  it;  and  those  circum- 
stances are  not  unfrequently  urgent,  and  create 
strong  sensations,  which  naturall}^  find  their  way  in 
strong  expressions  and  violent  demeanor.^  At  the 
same  time,  the  master  risks  the  consequences,  if  he 
commences  a  dispute  with  illegal  conduct  and  im- 
proper behavior. 

71.  It  is  impossible  to  fix  with  certainty,  the  nice 
tints  and  colors  which  mark  the  boundaries  between 
a  justifiable  command  and  an  improper  exercise  of 
authority.  And  this  is  seldom  required,  for  the 
circumstances  of  each  case  are  generally  strongly 
marked.  It  should  be  understood  by  masters,  that 
neither  the  law  nor  the  administrators  of  it  encou- 
rage or  justify  revenge.  They  punish  only  for  the 
reformation  of  the  offender,  or  for  example,  to  deter 

•  Robinctt  v.  The  Ship  Exeter,  2  Rob.  Adra.  R.  261;  Benton 
V.  Whitney,  Crabbe's  R.  417 ;  Forbes  v.  Parsons,  Crabbe's  R. 
283.  In  the  case  of  Morris  v.  Cornell,  G  Law  Rep.  304,  the 
second  mate  being  oommandcd  by  the  master  to  desist  from  swear- 
ing, and  retorting  on  the  master  that  he  had  hoard  him  swear, 
and  stating  the  language,  is  no  justification,  it  was  held,  for  the 
master  violently  assaulting  and  inflicting  a  blow  upon  him.  In 
such  u  case,  there  is  no  exigency,  no  emergency.  The  captain  is 
bound  to  suppress  his  passion.  If  unable  to  control  himself,  he 
is  unfit  to  command  others.  lie  is  to  set  an  example  of  calmness 
and  self-possession  ;  vicikncc  begets  violence.  Hasty  words  and 
rash  acts  on  shipboard  often  produce  deplorable  consequences, 
which  a  little  forbearance  would  have  prevented. 

7 


98  THE   LAW    OF    SHIPPING. 

others  from  offoiuling/  While  they  excuse,  .and  pro- 
perly excuse,  hasty  words  employed  by  him  on  occa- 
sions of  emergency,  -svliich  are  usually  attended  with 
more  or  less  excitement,  they  look  with  suspicion 
upon  violent  language  employed  at  the  very  moment 
of  inllicting  punishment.  It  implies  an  undue  vio- 
lence of  temper ;  and  it  is  an  admonition  of  the  law, 
that  passion  is  not  to  be  indulged  in  the  infliction 
of  punishment,  and  that  he  who  has  to  command 
others,  is  not  fully  prepared  for  the  duties  of  that 
station,  unless  in  some  degree  he  commands  him- 
self. 

>  Thome  v.  White,  1  Peters'  Adm.  R.  175. 

»  The  Agincourt,  1  Hagg.  Ad.  R,  290.  In  the  case  of  Fuller 
V.  Colby,  3  Wood.  &  M.  6,  Judge  Woodbury  said  :— "  This  Court 
•will  always  be  quite  as  anxious  to  redress  any  wrongs  inflicted  on 
the  less  intelligent  seaman  as  on  his  more  educated  oflSccr, — the 
law  demanding  a  strict  adherence  to  duty  from  both,  jrrojjcr  lan- 
guage no  less  than  proper  acts,  are  the  only  means  of  protecting 
the  rights  of  both,  and  rendering  their  situations  respectable,  and 
securing  the  interests  and  welfare  of  all  concerned  in  the  voyage." 
And  he  held,  that  a  captain  may  strike  a  seaman  for  disrespectful 
words,  upon  a  principle  common  alike  to  this  relation  and  that  of 
parent  and  child.  See  also  4  Wash.  C.  C.  R.  340 ;  Ware's  R. 
224;  U.  S.  V.  Smith,  3  Wash.  C.  C.  R.  525  ;  U.  S.  v.  Freeman, 
4  Mason,  511 ;  Thome  v.  White,  1  Peters'  Adm.  R.  171.  Judge 
Woodbury  was  under  the  impression,  that  the  language  of  Judge 
Story,  in  the  case  of  Cushman  v.  Ryan,  1  Story's  Rep.  100,  was 
intended  to  deny  that  the  master  may  strike  a  seaman  for  disre- 
spectful words.  There  is  nothing,  however,  in  his  opinion  in  that 
case,  that  will  justify  that  construction.  The  syllabus  of  the  re- 
porter, however,  states,  that  "no  words  of  provocation  will  justify 
an  assault,  although  they  may  constitute  a  ground  for  the  reduc- 
tion of  damages."  It  is  true,  in  common  cases  between  indivi- 
duals, that  words  never  justify  blows  ;  but  (it  was  said  in  the  case 
of  Fuller  v.  Colby),  between  oSicers  and  seamen,  all  blows  are 


OF    THE    master's    AUTHORITY,    ETC.       99 

72.  Ordinarily,  the  right  of  inflicting  punishment 
on  shipboard  is  confined  to  the  master.  A  distribu- 
tion and  extension  of  power,  would  be  the  parent 
of  confusion  rather  than  of  order,  and,  by  breaking 
in  upon  the  unity  of  authority,  would  tend  rather  to 
the  relaxing  than  the  sustaining  of  good  discipline.' 
The  infliction  of  punishment  by  the  subordinate 
ofiicers  of  the  ship,  when  the  master  is  on  board 
and  at  hand,  can  be  justified  only  by  the  immediate 
exigencies  of  the  sea  service,  or  as  a  necessary 
means  to  suppress  mutinous,  illegal,  or  flagrant  mis- 
behavior on  the  part  of  the  seamen,  or  to  compel 
obedience  to  orders  or  other  duties,  which  require 
prompt  and  instant  action  and  interference  on  the 
part  of  the  officers,  and  admit  of  no  delay. 

73.  If  the  circumstances  are  not  urgent  and  im- 
perative, it  is  the  duty  of  the  mate  and  other  officers 
to  consult  the  master  as  to  the  infliction  of  punish- 
ment ;  for  he,  being  in  command  of  the  ship,  is  alone 

proper  for  disobedience  and  insolence,  wbicli  are  justifiable  by  a 
parent  to  a  cbild.  I  am  unable  to  find  anything  in  the  case  of 
('ashman  v.  llyan,  that  runs  counter  to  this  doctrine,  unless, 
indeed,  it  be,  that  Judge  Story  thinks  there  is  more  analogy  be- 
tween the  relation  of  master  and  seaman,  and  master  and  appren- 
tice, than  between  the  relation  of  parent  and  child.  Brown  v.  The 
Independence,  Crabbc's  11.  54.  In  this  case  it  was  held,  that 
where  a  seaman,  shipped  for  a  voyage,  is  so  severely  chastised, 
with  an  improper  weapon,  bccau.sc  of  his  insolence,  as  to  be  neces- 
sarily left  behind  at  a  foreign  port,  he  is  entitled  to  his  wages  to 
the  time  of  the  vessel's  arrival  at  the  last  port  of  delivery;  but 
not  to  the  benefit  of  the  Act  of  28th  of  Feb.,  1S03.  Sec  Forbes 
V.  Parsons,  Id.  28o,  a,s  to  what  will  entitle  a  seaman  to  recover 
damages  for  an  assault  and  battery  from  the  officers  of  a  ship. 
'  ElwcU  V.  Martin,  Ware's  Rep.  Gl. 


3 


100  THE    LAW    OF    snippiNa. 

ordinarily  intrustetl  with  the  regulation  of  the  ship's 
discipline;  and  no  other  person  has  any  right  to 
inflict  punishment  without  his  express  or  implied 
sanction  thereof.     Cases  may,  and  do  arise,  where 
instant  ohedience  to  the  orders  of  the  mate  is  neces- 
sary ;  such  as  orders  to  take  in  sail  in  a  sudden 
scpiall,  or  to  cut  away  the  rigging  or  spars,  or  to  go 
aloft  on  a  sudden  and  emergent  duty,  when  the  mate 
may  instantly  enforce  ohedience  by  the  application 
of  positive  force,  and,  indeed,  of  all  the  force  re- 
quired  to  produce   prompt  obedience.     But,  then, 
every  such  case  is  justified  only  from  necessity,  and 
the  force  so  used  is  not  so  much  a  punishment  as  it 
is  a  means  of  compelling  the  performance  of  a  press- 
ing duty,  admitting  of  no  delay.'     This  is  the  only 
exception  known  to  the  general  rule,  that  the  master 
has  the  sole  authority,  when  on  board,  to  inflict,  or 
cause  to  be  inflicted,  punishment  on  any  of  the  crew. 
Hence,  if  he  is  present,  when  any  punishment  is  in- 
flicted by  a  subordinate  officer,  and  can  prevent  it, 
and  does  not,  he  is  personally  responsible  for  the  act, 
and,  by  his  acquiescence,  adopts  it,  as  done  by  his 
authority.^ 

74.  When  the  master  is  not  on  board,  the  next 
highest  officer  on  board  succeeds  to  his  rights  and 
authority  pro  tempore,  so  far  as  they  are  necessary  for 
the  due  performance  of  the  ship's  duties.^  While  the 
inferior  officers,  as  well  as  the  common  seamen,  are 


1  U.  S.  V.  Hunt,  2  Story's  R.  125,  126 ;  U.  S.  v.  Taylor,  2 
Sura.  R.  588. 
"  Ibid. 
3  U.  S.  V.  Taylor,  2  Sum.  R.  588. 


OF    THE    master's    AUTHORITY,    ETC.      101 

bound  to  obey  the  orders  of  the  master,  it  must  be 
understood  that  they  are  not  bound  to  obey  all  his 
orders  indiscriminately,  whether  lawful  or  unlawful. 
Hence  if  the  mate,  in  obedience  to  the  orders  of  the 
master,  should  inflict  on  a  seaman,  an  unjust  and 
cruel  punishment,  he  will  be  held  responsible  as  a 
joint  trespasser  with  the  master.' 

75.  It  is  the  duty  of  the  master  to  prevent,  as  far 
as  he  may,  any  undue  exercise  of  authority  by  his 
subordinate  officers,  and  any  abuses,  injuries,  and 
trespasses  by  them.  If  he  is  present  when  any  of 
the  subordinate  officers  inflict  chastisement  upon  the 
crew,  he  is  bound  in  duty  to  interfere  and  restrain 
it,  if  it  is  improper  in  its  nature  or  character,  or  un- 
justifiable under  the  circumstances.  If  he  may 
interfere,  and  he  does  not,  he  must  be  deemed  to 
assent  and  encourage  it ;  for  no  officer  in  his  pre- 
sence has  any  right  to  inflict  punishment  without 
his  assent  or  direction,  unless  upon  an  emergency, 
which  admits  of  no  delay.  It  is  not  sufficient  for 
him  to  excuse  himself  from  this  interposition  upon 
any  notions  of  courtesy,  or  of  upholding  the  autho- 
rity of  the  officers,  or  of  supporting  the  harmony 
and  discipline  of  the  ship.  The  law  has  intrusted 
liiin  with  summary  powers  for  the  good,  not  of  the 
officers  alone,  but  of  the  crew  also,  and  indeed  for 
the  general  good  of  the  maritime  service  in  which  he 
is  engaged.  Wliilc  lie  should  uphold  the  just  dis- 
cipline oi"  the  ship  witli  a  steady  confidence,  he  is  to 
take  care  that  the  crew  are  not  made  the  victims  of 


'  Butler  V.  M'Clellan,  Ware's  R.  232. 


102  THE    LAW    OF    SHIPPING. 

the  insolence,  the  pcassions,  or  the  caprices  of  the 
officers  nnder  him.^ 

70.  While  the  law  ui)holds  the  authority  of  the 
master  to  inllict  punishment  for  a  proper  cause,  and 
with  proper  dispositions,  it  frowns  upon  all  punish- 
ment inflicted  for  inadequate  cause,  or  with  improper 
motives.  By  an  Act  of  Congress,  it  is  provided, 
"  That  if  any  master  or  other  officer  of  an  American 
ship  or  vessel  on  the  high  seas,  or  on  any  waters 
within  the  admiralty  and  maritime  jurisdiction  of 
the  United  States,  shall,  from  malice,  hatred,  or 
revenge,  and  without  justifiable  cause,  beat,  wound, 
or  imprison  any  one  or  more  of  the  crew  of  such 
ship  or  vessel,  or  withhold  from  them  suitable  food 
and  nourishment,  or  inflict  upon  them  any  cruel  and 
unusual  punishment,  every  such  person  so  offend- 
ing shall,  on  conviction  thereof,  be  punished  by 
fine,  not  exceeding  one  thousand  dollars,  or  by  im- 
prisonment not  exceeding  five  years,  or  by  both, 
according  to  the  nature  and  aggravation  of  the 
offence.^ 

77.  In  the  construction  of  this  statute,  it  has  been 
held,  that  the  word  "  malice"  means  a  wrongful  act 
done  intentionally,  without  just  cause  or  excuse. 
The  statute  makes  a  distinction  between  the  import 
of  the  words  "malice,  hatred,  and  revenge."  Malice 
indicates  the  mildest  form  of  wrongful  intention; 
and  hatred,  or  revenge,  the  more  intense  form,  result- 
ing from  bad  passions,  and  gross  malignity  and  de- 

1  Thomas  v.  Lane,  2  Sum.  R.  111. 
»  Act  of  1835,  ch.  40,  sec.  3. 


OF    THE    master's    AUTHORITY,     ETC.      103 

pravity  of  heart.  If  the  offence  were  not  punish- 
able, unless  there  were  bad  passions  in  the  case,  then 
hatred  or  revenge  would  have  been  the  only  appro- 
priate words.  As  the  language  stands  in  the  statute, 
the  word  "malice"  has  a  substantial  meaning  and 
covers  all  cases  of  intentional  wrong  not  included  in 
the  other  words.'  To  incur  the  penalties  of  this  act, 
there  must  exist  not  only  malice,  or  hatred,  or 
revenge,  but  there  must  be  a  want  of  justifiable  cause 
for  the  beating.  If  the  party  inflict  the  injury,  how- 
ever maliciously ;  still,  if  he  has  a  justifiable  cause, 
the  statute  offence  is  not  committed.  Malice,  hatred, 
or  revenge,  must  concur  with  a  want  of  justifiable 
cause  to  inflict  the  injury,  to  constitute  the  statute 
offence." 

78.  If  the  mode  of  punishment,  or  coercion,  was 
unjustifiable,  or,  in  other  words,  if  there  was  no  jus- 
tifiable cause  for  the  punishment,  then  the  jury  must 
determine  whether  it  was  done  by  the  party  from 
"malice,  hatred,  or  revenge."  And  in  passing  upon 
this  question,  they  must  look  at  all  the  facts  of  the 
case.^  The  word  "  crew"  employed  in  the  Act,  was 
intended  to  include  the  officers,  as  well  as  the  com- 
mon seamen.  It  is  used  as  equivalent  to  ship's  com- 
pany.* Wliile  the  master  may  restrain  the  commis- 
sion of  great  crimes  on  the  part  of  the  crew,  and  is 
bound  to  do  so,  he  has  no  judicial  authority  to  punish 
the  criminal.     IILs  authority  and  duty  are  limited  to 

«  U.  S.  V.  Taylor,  2  Sum.  R.  537. 
'  Il.id. 

'  U.  S.  V.  Aldcn,  7  Law  Kcp.  4G9. 
♦  U.  S.  V.  Winn,  3  Sum.  11.  200. 


104  THE    LAVr     OF     SHIPPING. 

securing  his  person  and  bringing  him  before  a  proper 
tribunal  of  his  country  for  punishment. i 

79.  The  duty  of  the  seamen,  after  they  have  once 
entered  fully  on  their  service  under  their  contract, 
is  obedience,  and  that  obedience  is  due,  and  may 
be  enforced,  as  well  in  a  river,  at  anchor,  and  be- 
fore a  clearance  is  obtained,  as  upon  the  high  seas, 
and  after  a  regular  clearance.  If  the  rule  of  law 
were  otherwise,  all  order  would  be  frustrated,  and 
the  due  navigation  and  safety  of  the  vessel  rendered 
impossible.^ 

•  Abbott  on  Shipp.,  239,  and  notes. 

2  U.  S.  V.  Staly,  1  Wood.  &  M.  338 ;  U.  S.  v.  Hamilton,  1  Ma- 
son, 443 ;  U.  S.  V.  Stevens,  4  Wash.  C.  C.  R.  547.  In  the  case 
of  U.  S.  V.  Staly,  supra,  which  was  an  indictment  for  a  revolt, 
it  appeared  in  evidence  that  the  defendant,  and  several  others, 
shipped  on  a  voyage  to  Apalachicola,  or  elsewhere,  for  a  market, 
and  were  taken  on  board  the  barque  the  evening  previous  to  the 
transaction  complained  of.  The  vessel  lay  at  anchor  in  the  stream, 
and  in  the  morning  on  unfurling  the  sails,  the  mainsail  was  asserted 
by  the  men  to  be  in  such  a  dilapidated  condition,  and  some  of  the 
rigging  so  much  out  of  order,  that  they  objected  to  going  to  sea 
in  the  vessel,  as  not  seaworthy,  and  made  offers  to  rescind  their 
contract,  and  pay  back  the  advance  which  they  had  received  in 
money.  The  officers  denied  that  she  was  unseaworthy,  and  under- 
took to  enforce  duties  under  the  contract,  which  led  to  the  collision 
and  resistance  complained  of.  Judge  Woodbury  charged  the  jury, 
that  whether  the  vessel  was  seaworthy  or  not,  was  a  fact  to  be  set- 
tled by  them.  If  she  was  not  seaworthy,  and  the  seamen,  on  going 
on  board  and  examining  her,  objected  to  serving  on  that  account, 
it  must  be  considered  a  refusal  to  enter  upon  the  discharge  of  their 
contract,  and  not  a  violation  of  duty  after  their  service  has  com- 
menced under  it.  In  such  a  case,  the  remedy  against  them,  if 
any,  is  a  civil  one,  for  not  beginning  to  serve  under  the  articles, 
and  not  a  criminal  one,  for  breaches  of  duty,  after  having  entered 


OF    THE    master's    AUTHORITY,    ETC.      105 

80.  When  a  seaman  complains  against  the  mas- 
ter for  an  assault,  and  it  is  proved  that  he  has  been 
guilty  of  misconduct  which  would  justify  some 
punishment,  he  cannot  entitle  himself  to  a  decree 
but  by  showing  that  the  punishment  was  excessive 
in  degree,  or  unjustifiable  in  kind.  The  master  has 
a  right  to  correct  the  disobedience  of  a  seaman  by 
corporal  punishment  in  cases  where  the  necessities 
of  the  service  call  for  it,  and  though  it  should  be 
sparingly  resorted  to,  a  Court  will  not  hold  the  mas- 
ter amenable  if  he  does  not  pass  the  limit  of  a  rea- 
sonable and  moderate  discretion.  However  the  truth 
of  the  fact  may  have  been,  the  onus  is  upon  the 
libelhmt  to  prove  that  such  limit  has  been  passed.' 

81.  When  a  seaman  brings  a  suit  for  damages 
against  the  master  for  illegal  and  unjustifiable  punish- 
ment, he  puts  in  issue  his  general  conduct  and  cha- 

upon  duty.  If  subsequent  to  the  shipment  and  commencement  of 
Bervicc,  the  vessel  is  believed  not  to  be  seaworthy,  the  seamen 
cannot  refuse  obedience,  but  may  ask  a  survey  if  in  port,  and  if 
not,  but  within  siglit  of  land,  request  the  master  to  return  and 
have  the  survey.  Should  he  then  conduct  unreasonably,  or  in  any 
way  treat  them  with  unnecessary  severity,  their  remedy  is  at  law 
after  their  return,  and  not  a  resort  to  violence,  unless  in  danger  of 
the  actual  loss  of  life,  and  then  at  their  peril  as  the  result  may 
turn  out. 

Judge  Woodbury  also  held,  that  if  the  vessel  had  not  cleared, 
but  was  lying  at  anchor  in  n  navigable  stream,  where  the  tide 
ebbs  and  flows,  the  seamen  (ni  board  are  bound  to  obedience;  and 
that  the  Court  probably  had  jurisdiction  over  a  revolt  there,  and 
would  exercise  it,  if  no  evidence  was  offered  as  to  the  limits  of  tho 
jurisdiction  of  a  State  ;  and  in  the  absence  of  such  cvidi;nce,  tho 
objection  to  the  jurisdiction  would  be  considered  as  waived. 

'  Carleton  v.  Davis,  Davies  K.  -"21.     Ware,  .F. 


106  THE     LAW    OF     SIIirPING. 

racter  during  the  voyage,  or  rather  enables  the 
master  to  put  it  in  issue.  But  when  the  master 
means  to  rely  on  such  matter  in  justification,  or  in 
mitigation  of  damages,  he  must  set  it  out  in  his 
answer  in  a  distinct  allegation.  The  libellant  has 
then  notice  of  the  defence,  and  may  be  prepared  to 
meet  it.  But  if  the  answer  contains  no  such  defen- 
sive allegation,  the  libellant  has  no  reason  to  suppose 
that  his  general  conduct  for  the  voyage  is  intended 
to  be  called  in  question.^ 


'  Pottingill   V.    Dinsmore,    Ibid.    208 ;     Benton   v.   Whitney, 
Crabbc's  11.  417. 


107 


CHAPTER   IV. 
OF  OFFENCES  COMMITTED  AT  SEA. 

82.  Haying  treated,  in  the  preceding  chapter,  of 
the  master's  authority  over  the  seamen,  as  that 
authority  has  been  recognised  or  defined  by  judicial 
tribunals,  we  now  proceed  to  consider  those  parti- 
cular acts,  the  commission  of  which  involves  crime 
and  consequent  punishment.  We  shall  not  enter 
far  into  the  province  of  criminal  law,  and  specify  all 
the  offences  which  mayor  are  likely  to  be  committed 
at  sea.  Our  purpose  will  be  accomplished  by  an  ex- 
amination of  those  particular  offences  which  are  of  so 
dangerous  and  aggravated  a  nature,  that  they  have 
challenged  the  attention  of  Congress,  and  been  made 
the  subject  of  legislative  enactments.  We  shall,  how- 
ever, make  an  exception  in  the  case  of  barratry,  an 
offence  belonging  perhaps  more  properly  to  the  law  of 
marine  insurance,  but  nevertheless  of  such  frequent 
occurrence,  that  it  deserves  to  be  mentioned  here  with 
some  particularity. 

83.  Barratry  is  an  act  committed  by  the  master 
or  mariners  of  a  sliip  for  some  unlawful  or  fraudulent 
purpose,  contrary  to  tlieir  duty  to  their  owners, 
whereby  the  latter  sustain  an  injury.  It  follows, 
therefore,  from  the  very  terms  of  the  definition,  tliat 
it  cannot  be  committed  l)y  a  master  who  is  owner 


108  THE    LAW    OF    SHIPPING. 

for  the  voyage;  because  he  cannot  commit  a  fraud 
against  himself  But  it  may  be  committed  against 
a  person  who  is  owner  for  the  voyage,  although  he 
may  not  be  the  general  owner  of  the  ship.^ 

84.  A  part-owner,  it  seems,  being  master,  may 

'  Marcardier  v.  Chesapeake  Ins.  Co.,  8  Crauch's  R.  39 ;  Abbott 
ou  Shipping,  p.  24'2.  "  The  term  harratn/,"  says  Lord  Tentcrden, 
"  which  is  often  used  as  well  by  foreign  writers  as  those  of  our 
own  nation,  is  generally  understood  in  this  as  in  most  other  coun- 
tries to  denote  a  fraudulent  act  of  the  master  or  mariners  com- 
mitted to  the  prejudice  of  the  owners  of  the  ship.  In  France  it  is 
often  used  in  a  more  enlarged  sense,  and  comprehends  acts  of  mere 
ignorance  or  uuskilfulncss  not  accompanied  with  a  fraudulent  de- 
sign. To  our  definition  of  barratry,  it  is  not  essential  that  the 
act  should  be  done  by  the  master  for  his  own  benefit,  or  with  the 
intent  of  injuring  his  owners.  Thus,  if  he  sail  out  of  port  without 
paying  port  duties,  whereby  the  goods  are  forfeited,  lost,  or  spoiled, 
or  if  he  cruise  in  quest  of  prizes  without  proper  authority,  and 
contrary  to  the  orders  of  his  owners,  or  if  he  disregard  an  iceberg, 
or  attempt  a  breach  of  a  blockade,  or  be  concerned  in  smuggling, 
or  connive  at  smuggling  by  his  mariners,  he  is  guilty  of  barratry. 
And  when  a  master  had  general  instructions  to  make  the  best  pur- 
chases with  despatch,  it  was  considered  that  such  instructions  must 
mean  legal  purchases,  and  legal  despatch,  and  that  going  into  an 
enemy's  settlement  to  trade,  although  his  cargo  would  be  more 
speedily  and  cheaply  completed  there  (the  ship  being  seized  and 
confiscated  on  account  of  it),  was  barratry.  Nor  was  it  thought  to 
make  any  difference  that  he  intended  thereby  to  promote  his 
owner's  interest.  It  is  not  for  him  to  judge  in  cases  not  intrusted 
to  his  discretion,  or  to  suppose  that  he  is  not  breaking  the  trust 
repcscd  in  him,  but  acting  meritoriously,  when  he  endeavors  to 
advance  the  interests  of  his  owners  by  means  which  the  law  forbids, 
and  which  his  owners  must  be  taken  to  have  forbidden,  not  only 
from  what  ought  to  be,  and  therefore  must  be  presumed  to  have 
been  their  own  sense  of  public  duty,  but  also  from  a  consideration 
of  the  risk  or  loss  likely  to  follow  from  the  use  of  such  means." 


OF  OFFENCES  COMMITTED  AT  SEA.   109 

commit  barratry  against  another,  and  the  owners  or 
master  may  commit  the  offence  against  the  general 
freighter,  or  with  consent  of  the  freighters  against 
the  owners.^  It  has  been  said,  that  the  fraudulent 
act  must  tend  to  the  benefit  of  the  offending  parties/ 
but  this  is  not  necessary  to  constitute  the  offence.^ 
True,  if  the  act  is  for  the  interest  of  the  master,  or 
the  mariners,  it  will  evince  a  strong  presumption  of 
fraud,  but  if  it  is  for  an  unlawful  purpose,  the  offence 
is  committed,  no  matter  whether  the  party  derives 
benefit  or  not." 

85.  If  the  question  turn  merely  on  the  fraud,  it 
will  always  be  necessary  to  look  at  the  motives  and 
intention  which  iniiuenced  the  act.     If  the  motive 


'  Ibid. 

«  Kendrick  v.  Delaficld,  2  Caines'  R.  71. 

8  Dedercr  v.  The  Del.  Ins.  Co.,  2  Wash.  C.  C.  R.  61,  66;  Ab- 
bott on  Shipping,  p.  243.  An  error  of  judgment  on  the  part  of 
the  captain  in  a  matter  where  he  is  intrusted  with  discretion,  does 
not  of  course  fall  within  the  meaning  of  barratry.  In  the  case  of 
Todd  V.  Ritchie,  1  Stark.  R.  100,  which  was  assumpsit  on  a  policy 
of  insurance,  one  count  of  the  declaration  alleged  the  loss  to  have 
arisen  from  the  barratry  of  the  master.  It  appeared,  that  after 
the  vessel  had  loft  Quebec  with  her  homeward  cargo  on  board,  she 
sprung  aleak,  and  the  captain  put  into  Gaspe,  in  the  Gulf  of  St. 
Lawrence,  and  before  any  survey  had  taken  place,  he  broke  up  her 
ceiling  and  end  bows  with  crowbars,  in  consccjucnce  of  which  the 
ship  was  much  injured  and  weakened.  This  was  done,  it  was 
suggested,  in  order  to  procure  the  condcmiiutinn  of  the  vessel. 
Upon  these  facts  Lord  Kllenborough  observed  to  the  plaintiff's 
counsel :  "  In  order  to  constitute  barratry,  which  is  a  crime,  the 
captain  must  be  proved  to  have  acted  against  his  better  ju<lgiuent; 
as  the  case  stands,  there  is  a  whole  ocean  between  you  and  bar- 
ratry." 

*  Ibid. 


110  THE    LAW    OF    SHIPPING. 

were  to  benefit  the  owner,  it  is  an  honest  one,  though 
it  may  be  a  mistaken  one,  and  therefore  the  act  can- 
not be  called  barratrous.     The  case  of  a  wilful  de- 
viation for  the  benefit  of  the  owner,  is  an  example 
which  attests  the  truth  of  the  principle ;  but  if  made 
for  the  benefit  of  the  master,  it  would  be  an  act  of 
barratry.     If  the  act  be  fraudulent  or  criminal,  it  is 
barratry.     In  that,  all  the  cases  concur.     But  it  by 
no  means  follows  that  every  illegal  act  is  a  criminal 
one.     On  the  contrary,  cases  may  occur  where  the 
act  of  the  master  is  in  violation  of  law,  but  involves 
neither  fraud  nor  crime.     Suppose,  for  example,  the 
captain  ignorantly  commit  a  breach  of  blockade,  or 
violate  some  foreign  ordinance  with  which  he  is  un- 
acquainted :  these  acts  would  be  illegal,  but  not  cri- 
minal.     The  illegality  of  the  act,  though  no  im- 
proper or  fraudulent  motive  appear,  may  be  prima 
facie  evidence  of  fraud  or  of  crime;  but  this  pre- 
sumption may  be  repelled  by  evidence.^ 

86.  Sailing  out  of  port,  without  paying  port  duties, 
whereby  the  ship  is  forfeited,  constitutes  barratry .^ 
So  breach  of  an  embargo,  or  blockade,  or  resistance 
of  search,  or  smuggling,  or  cruising  under  a  letter  of 
marque,  against  the  owner's  instructions  or  inten- 
tions, or  illegal  rescue  of  a  neutral  ship,  by  the  mas- 
ter after  capture.^     From  these  examples  it  will  be 

'  Dederer  v.  Del.  Ins.  Co.  2  Wash.  C.  C.  R.  61 ;  Wiggin  v. 
Amory,  14  Mass.  R.  1;  Phyn  v.  Royal  Ins.  Co.,  7  T.  R.  505  ; 
Hood  V.  Nesblt,  2  Dall.  R.  137;  Thurston  v.  Columbian  Ins.  Co., 
3  Caines,  R.  89.     But  see  ante,  108,  note  1. 

2  Knight  V.  Cambridge,  1  Strange,  581;  Vallejo  v.  Cowpcr, 
Cow.  R.  153. 

3  Story's  Notes,  Abbott,  p.  243. 


OF  OFFENCES  COMMITTED  AT  SEA.   Ill 

seen,  as  we  have  before  observed,  that  it  is  not  es- 
sential that  the  act  should  be  done  by  the  master 
for  his  own  benefit,  or  with  intent  of  injuring  his 
owners.  But  in  all  the  instances  here  cited,  the  act 
is  fraudulent,  and  is  committed  to  the  prejudice  of 
the  owners  of  the  ship.  And  that  constitutes  the 
offence. 

87.  It  has  wisely  been  provided  by  Congress,  for 
the  benefit  of  underwriters  and  other  parties  in  in- 
terest, that  "  any  person,  not  being  an  owner,  who 
shall,  on  the  high  seas,  wilfully  and  corruptly  cast 
away,  burn,  or  otherwise  destroy  any  vessel  unto 
which  he  belongeth,  being  the  property  of  any  citizen 
or  citizens  of  the  United  States,  or  procure  the  same 
to  be  done,  and  being  thereof  lawfully  convicted, 
shall  suffer  death.'"  By  another  section  it  is  pro- 
vided, that  "  if  any  person  shall,  on  the  high  seas, 
wilfully  and  corruptly  cast  away,  burn,  or  otherwise 
destroy  any  vessel  of  which  he  is  owner,  in  part,  or 
in  whole,  or  in  any  wise  direct  or  procure  the  same 
to  be  done,  with  intent  or  design  to  prejudice  any 
person  or  persons  that  hath  underwritten,  or  shall 
underwrite  any  policy  or  policies  of  insurance  thereon, 
or  if  (of)  any  merchant  or  merchants  that  shall  load 
goods  thereon,  or  of  any  other  owner  or  owners  of 
such  vessel,  the  person  or  persons  offending  therein 
being  thereof  lawfully  convicted,  shall  be  deemed 
and  adjudged  guilty  of  felony,  and  shall  suffer 
death."^ 

«  Aft  of  26th  March,  1804,  sect.  2. 

2  Tliid.  Hcct.  3.     The  word  "  if"  in  this  Hcction   is  inserted   liy 
miatako  for  "  of."     liy  the  7th  acctioD  of  the  Act  of  July  2!»,  1800, 


112  THE    LAT7    OF    SHIPPING. 

88.  To  destroy  a  vessel  within  the  meaning  of  the 
foregoing  provisions  of  the  statute,  is  to  unfit  her  for 
service,  beyond  the  hope  of  recovery  by  ordinary 
means.  This,  as  to  the  extent  of  injury,  is  synony- 
mous with  cast  away.  It  is  the  generic  term  :  cast- 
ing away  is  a  species  of  destroying,  as  burning  is. 
Both  mean  such  an  act  as  causes  a  vessel  to  perish 
or  be  lost,  so  as  to  be  irrecoverable  by  ordinary 
means.'  It  will  be  perceived  that  the  law  punishes 
the  act  when  done  with  an  intent  to  prejudice;  it 
does  not  require  that  there  should  be  an  actual  pre- 
judice. The  prejudice  intended  is  to  be  to  a  person 
who  has  underwritten,  or  shall  underwrite,  a  policy 
thereon.  It  does  not  prescribe  that  the  policy  should 
be  valid,  so  that  a  recovery  could  be  had  thereon. 
It  points  to  the  intended  prejudice  of  an  underwriter 
de  facto.^ 

89.  The  terms  "any  person  or  persons"  in  the 
Act,  extend  to  corporations  and  bodies  politic,  as  well 
as  to  natural  persons.  The  mischief  intended  to  be 
reached  by  the  statute  is  the  same,  whether  it  re- 
spects private  or  corporate  persons.     Corporations 


it  is  provided  that  any  person,  not  being  an  owner,  who  shall,  on 
the  high  seas,  wilfully,  with  intent  to  burn  or  destroy,  set  fire  to 
any  ship  or  other  vessel,  or  otherwise  attempt  the  destruction  of 
such  ship  or  other  vessel,  being  the  property  of  any  citizen  or  citi- 
zens of  the  United  States,  or  procure  the  same  to  be  done,  with 
the  intent  aforesaid,  and  being  thereof  lawfully  convicted,  shall 
suficr  imprisonment  to  hard  labor  for  a  term  not  exceeding  ten 
years,  nor  less  than  three  years,  according  to  the  aggravation  of 
the  offence. 

*  U.  S.  v.  Johns,  1  Wash.  C  C.  R.  363 ;  S.  C.  4  Ball.  412. 

2  U.  S.  V.  Amedy,  11  Wheat.  392. 


OF    OFFENCES    COMMITTED    AT     SEA.       113 

for  civil  purposes,  and  within  the  purview  of  penal 
statutes,  are  deemed  persons.^  On  an  indictment 
then  under  this  act,  it  is  sufficient  to  show  the  ex- 
istence of  an  association  actually  carrying  on  the 
business  of  insurance,  by  whose  known  officers  de 
fado  the  policy  was  executed,  and  to  prejudice  whom 
the  vessel  insured  was  destroyed.  It  is  not  neces- 
sary to  prove  the  existence  of  a  legal  corporation 
authorized  to  insure,  or  a  compliance  on  the  part  of 
such  corporation  with  the  terms  of  its  charter,  or  the 
validity  of  the  policy  of  insurance.^ 

90.  To  prevent  combinations  with  persons  on  land, 
it  is  provided,  by  another  act,  that  "  if  any  person 
or  persons  shall,  on  the  high  seas,  or  within  the 
United  States,  wilfully  and  corruptly  conspire,  com- 
bine, and  confederate  with  any  other  person  or  per- 
sons, such  other  person  or  persons  being  either  within 
or  without  the  United  States,  to  cast  away,  burn,  or 
otherwise  destroy  any  ship  or  vessel,  or  to  procure 
the  same  to  be  done,  with  intent  to  injure  any  per- 
son, or  body  politic,  that  hath  underwritten,  or  shall 
thereafterwards  underwrite,  any  policy  of  insurance 
thereon,  or  on  goods  on  board  thereof,  or  with  intent 
to  injure  any  person,  or  body  politic,  that  hath  lent 
or  advanced,  or  thereafter  shall  lend  or  advance  any 
money  f)n  such  vessel,  in  bottomry  or  respondentia, 
or  shall,  within  the  United  States,  build  or  fit  out, 
or  aid  in  building  or  fitting  out  any  ship  or  vessel, 
with  intent  that  the  same  shall  be  cast  away,  burned, 
or  destroyed,  for  the  purpose  or  with  the  design 

'  U.  S.  V.  Aracdy,  11  Wheat.  392;  2  lust.  T.'iO. 
'  U.  S.  V.  Aincdy,  siqti'f- 

8 


114  THE    LA-SF    OF    SHIPPING. 

aforesaid,  every  person  so  offending  shall,  on  convic- 
tion thereof,  be  deemed  guilty  of  felony,  and  shall  be 
punished  by  fine  not  exceeding  ten  thousand  dol- 
lars, and  by  imprisonment  and  confinement  to  hard 
labor  not  exceeding  ten  years/ 

91.  It  is  also  provided  by  an  early  Act,^  that  if 
any  person  commit,  upon  the  high  seas,  or  in  any 
river,  haven,  basin,  or  bay,  out  of  the  jurisdiction  of 
any  particular  State,  murder  or  robbery,  or  any 
other  oflence,  which,  if  committed  within  the  body 
of  a  county,  w^ould,  by  the  laws  of  the  United  States, 
be  punishable  with  death ;  or  if  any  captain  or 
mariner  of  any  vessel,  shall  piratically  and  felo- 
niously run  away  w4th  such  vessel,  or  any  goods  or 
merchandise  to  the  value  of  fifty  dollars,  or  yield  up 
such  vessel  voluntarily  to  a  pirate ;  or  if  any  seaman 
shall  lay  violent  hands  upon  his  commander,  thereby 
to  hinder  and  prevent  his  fighting  in  defence  of  his 
ship  or  goods  committed  to  his  trust,  or  shall  make 
a  revolt  in  the  ship,  every  such  offender  shall  be 
deemed,  taken,  and  adjudged  to  be  a  pirate  and 
felon,  and  being  thereof  convicted,  shall  suffer  death. 
It  will  be  seen  in  a  subsequent  section,  -  that  the 
penalty  for  making  a  revolt  is  now  changed.^ 

92.  The  section  which  w^e  have  quoted  above  is 
the  8th  of  the  Act,  and  in  the  construction  of  it,  it 
has  been  held  by  the  Supreme  Court  of  the  United 
States,  that  general  piracy,  or  murder,  or  robbery, 

'  Act  of  March  3, 1825,  sect.  23. 
»  Act  of  30th  April,  1790,  sect.  8. 
^  Vide  sect.  9G,  post. 


OF    OFFENCES    COMMITTED    AT     SEA.       115 

committed  in  the  places  described  in  the  section,  by 
persons  on  board  of  a  vessel  not  at  the  time  belong- 
ing to  the  subjects  of  any  foreign  power,  but  in  pos- 
session of  a  crew  acting  in  defiance  of  all  law,  and 
acknowledging  obedience  to  no  government  what- 
ever, is  within  the  true  meaning  of  this  Act,  and  is 
punishable  in  the  Courts  of  the  United  States.  Per- 
sons of  this  description  are  proper  objects  for  the 
penal  code  of  all  nations;  and  the  Court  thought 
that  the  general  words  of  the  Act  of  Congress  apply- 
ing to  all  persons  whatsoever,  though  they  ought  not 
to  be  so  construed  as  to  extend  to  persons  under  the 
acknowledged  authority  of  a  foreign  State,  ought  to 
be  so  construed  as  to  comprehend  those  who  acknow- 
ledge the  authority  of  no  State.  Those  general 
terms  ought  not  to  )je  applied  to  offences  committed 
against  the  particular  sovereignty  of  a  foreign  power; 
but  the  Court  were  of  opinion  that  they  ought  to  be 
applied  to  offences  committed  against  all  nations,  in- 
cluding the  United  States,  by  persons  who  by  com- 
mon consent  are  equally  amenable  to  the  laws  of  all 
nations.'  It  should  be  observed,  that  the  words 
"out  of  the  jurisdiction  of  any  particular  State,"  are 
construed  to  mean  out  of  the  jurisdiction  of  any  par- 
ticular State  of  the  Union.  Particular  State,  is  uni- 
formly used  in  this  Act  in  contradistinction  to  United 
States.^ 

'  U.  S.  v.  KHntock,  5  Wheat.  R.  144,  152;  U.  S.  v.  Palmer,  3 
Wheat.  GIO. 

«U.  S.  V.  Furlong,  5  Wheat.  184.  In  (he  case  of  U.  S.  v. 
Ilolmf-fl,  T)  Wlipat.  412,  417,  .Mr.  Justice  Washington,  in  deliver- 
ing the  judgment  of  the  Court,  said  :  "In  rospcct  to  the  first 
question  before  the  Court,  the  (Jourt  is  of  opinion,  and  so  it  lias 
been  decided  during  the  present  term,  that  it  makes  no  difTcrenco 


IIG  THE    LAW    OF    SHIPriNG. 

93.  Upon  the  question,  wlictlicr  tlic  Act,  which 
we  are  now  considering,  makes  robbery  piracy,  and 
therefore  punishable  with  death,  we  have  the  judg- 
ment of  the  Supreme  Court  of  the  United  States.' 
In  the  case  of  the  United  States  v.  Palmer,  it  was 
contended  by  the  counsel  for  the  defendant,  that 
Congress  did  not  intend  to  make  that  a  capital  offence 
on  the  high  seas,  which  is  not  a  capital  offence  on 
land.  That  only  such  murder,  and  such  robbery, 
and  such  other  offence  as,  if  committed  within  the 
body  of  a  county,  would,  by  the  laws  of  the  United 
States,  be  punishable  with  death,  is  made  piracy,  &c. 
Chief  Justice  Marshall,  who  delivered  the  opinion  of 
the  Court,  said  that  this  argument  was  entitled  to 
great  respect,  but  the  Court  could  not  assent  to  its 
correctness.  "  The  Legislature,"  he  observed, "  having 
specified  murder  and  robbery  particularly,  are  un- 
derstood to  indicate  clearly  the  intention  that  these 
offences  shall  amount  to  piracy ;  there  could  be  no 
other  motive  for  specifying  them." 

94.  Piracy  by  the  law  of  nations  is  robbery,  or 
forcible  depredations  upon  the  sea,  animo  furandi!'^ 
To  constitute  the  offence,  within  the  meaning  of  the 

whether  the  offender  be  a  citizen  of  the  United  States  or  not.  If 
it  be  committed  on  board  of  a  foreign  vessel  by  a  citizen  of  the 
United  States,  or  on  board  of  a  vessel  of  the  United  States  by  a 
foreigner,  the  offender  ig  to  be  considered  pro  liac  vice,  and  in 
respect  to  this  subject,  as  belonging  to  the  nation  under  whose  flag 
he  sails.  If  it  be  committed  cither  by  a  citizen  or  a  foreigner,  on 
board  of  a  piratical  vessel,  the  offence  is  equally  cognizable  by  the 
Courts  of  the  United  States,  under  this  law.'' 

•  U.  S.  v.  Palmer,  3  Wheat.  K.  GIO,  G27. 

2  U.  S.  V.  Smith,  5  Wheat.  II.  153,  161. 


OF  OFFENCES  COMMITTED  AT  SEA.   117 

statute,  the  vessel  must  be  run  away  with  by  a  cap- 
tain or  mariner  of  the  vessel,  and  it  must  be  done 
piratically  and  feloniously.  The  statute  does  not 
require  that  there  should  be  any  personal  violence 
or  putting  in  fear.  The  terms  "  piratically  and 
feloniously"  do  not  necessarily  imply  personal  force 
or  violence.  The  "  piratically  and  feloniously  run- 
ning away  with  a  ship"  within  the  statute,  is  the 
running  away  with  the  ship,  with  the  wrongful  and 
fraudulent  intent  thereby  to  convert  the  same  to  the 
taker's  own  use,  and  to  make  the  same  his  own  pro- 
perty against  the  will  of  the  owner.  The  intent 
must  be  that  wicked  and  depraved  intent,  that  a7ii- 
mus  furandl  which  the  law  deems  felonious.  It 
must  be  a  fraudulent  and  unlawful  conversion  of  the 
property  for  the  sake  of  gain,  with  the  intent  to 
despoil  the  owner  thereof  against  his  will.^ 

95.  It  will  be  observed,  that  one  of  the  offences  spe- 
cified by  the  8th  section  is,  the  laying  violent  hands 
upon  the  master  to  hinder  and  prevent  his  fighting 
in  defence  of  the  ship  or  cargo.  Any  force  employed 
of  any  character  against  the  master  for  the  purpose 
described,  would  seem  to  fall  within  the  intent  and 
meaning  of  the  Act.  If  any  one  or  more  of  the  sea- 
men point  a  pistol  or  ])ayonet  at  the  breast  of  the 
master,  "thereby  to  liinder  or  prevent  his  fighting 
in  defence  of  the  sliip  or  goods  committed  to  liis 
trust,"  they  employ  a  more  effectual  mode  to  accom- 
plish their  object,  than  if  they  had  in  the  language 
of  the  statute,  "l.iid  violent  hands  upon  him."  The 
Legislature,  it  seems  to  us,  intended  to  strike  at  the 

»  U.  S.  V.  Tully,  1  Gallis.  R.  247. 


118  THE    LAW    OF    SITIPriNG. 

particular  oflence,  and  not  at  the  mode  by  which  it 
might  be  conmiitted.  "  The  true  rule,"  says  Sir  Wil- 
liam Jones,  "is,  that  criminal  laws  should  be  con- 
strued liberally  as  to  the  ollence,  and  strictly  as  to 
the  ollender."^ 

9G.  The  offence  of  making  a  revolt  in  the  ship, 
which,  under  the  Stli  section  of  the  Act,^  is  punish- 
able as  a  capital  offence,  is  now,  by  the  Act  of  3d 
March,  1835,'  punishable  by  a  fine  not  exceeding 
two  thousand  dollars,  and  by  imprisonment  and  con- 
finement to  hard  labor  not  exceeding  ten  years,  ac- 
cording to  the  nature  and  aggravation  of  the  offence. 
Revolts  on  shipboard  are  now  to  be  considered  as 
defined  by  this  latter  Act,  and  consist  not  only  in 
attempts  to  usurp  the  command  from  the  master,  or 
to  transfer  it  to  another,  or  to  deprive  him  of  it  for 
any  purpose  by  violence,  but  in  resisting  him  in  the 
free  and  lawful  exercise  of  his  authority."     If  the 

>  Life  of  Sir  W.  Jones,  p.  268. 

=  Act  of  30tli  April,  1700. 

3  Act  of  od  3Iarch,  1835,  ch.  313,  sect.  1. 

*  U.  S.  V.  Peterson,  1  W.  &  M.  305.  In  the  case  of  U.  S.  v. 
Ahnida,  Wharton's  Criminal  Law,  2d  Ed.  818,  Judge  Kane  said 
that,  "  the  unlawful  acts  which  now  fall  within  the  definition  of  a 
maritime  revolt,  are  distributed  by  the  language  of  this  section 
(sect.  1,  Act  1835),  into  four  categories  or  classes.  1.  Simple 
resistance  to  the  exercise  of  the  captain's  authority.  2.  The  de- 
position of  the  captain  from  his  command.  3.  The  transfer  of  the 
captain's  power  to  a  third  person.  4.  The  usurpation  of  the  cap- 
tain's power  by  the  party  accused.  It  is  impossible  to  analyze  the 
section  as  I  have  done,  without  remarking  that  the  offences  which 
it  includes,  however  similar  in  character,  differ  widely  in  degree. 
The  high  act  of  unpremeditated  resistance  to  the  captain  cannot 
be  identified  with  his  formal  degradation  from  his  command,  still 
less  with  the  usurpation  of  his  station,  without  overlooking  the 


OF  OFFENCES  COMMITTED  AT  SEA.   119 

vessel  has  not  cleared,  but  is  lying  at  anchor  in  a 
navigable  stream,  where  the  tide  ebbs  and  flows,  the 
seamen  on  board  are  bound  to  obedience,  and  the 
Courts  of  the  United  States  presumptively  have 
jurisdiction  over  a  revolt  there,  and  will  exercise  it, 
if  no  evidence  be  offered  as  to  the  limits  of  the  juris- 
diction of  the  State,  and  any  exception  on  this  ac- 
count is  apparently  waived.^ 

97.  If  any  seaman  or  other  person  commits  man- 
slaughter upon  the  high  seas;  or  confederates,  or 
attempts,  or  endeavors,  to  compel  any  commander, 
master,  officer,  or  mariner,  to  yield  up,  or  run  away 
with  any  ship  or  vessel,  or  with  any  goods,  wares, 
or  merchandise,  or  to  turn  pirate,  or  to  go  over  to, 
or  confederate  with,  pirates,  or  in  anywise  trade 
with  any  pirate,  knowing  him  to  be  such,  or  furnish 
such  i^irate  with  any  ammunition,  stores,  or  provi- 
sions of  any  kind,  or  fits  out  any  vessel  knowingly, 

gradations  of  crime,  and  confounding  the  accidental  turbulence  of 
a  heated  sailor  with  the  deliberate  and  daring  and  triumphant  con- 
spiracy of  mutineers."  In  this  case  judgment  was  arrested,  upon 
the  ground  that  the  indictment  charged  all  the  prisoners,  simply 
and  alike,  with  "  making  a  revolt."  "The  party  accused,"  said 
Judge  Kane,  ''is  entitled  to  the  most  clear  specification  of  his 
offence,  that  its  character  and  circumstances  reasonably  admit  of; 
and  it  cannot  be  said  that  he  has  had  tliis,  when  a  more  direct  de- 
scription is  furnished  in  the  very  words  of  the  Act  under  which  he 
ia  indicted." 

Sec  also  r.  S.  V.  Forbes,  Crabbc's  11.  558.  A  mere  disobedience 
by  one  or  two  of  the  seamen,  without  combining  with  the  others, 
or  offensive  or  insolent  language,  is  not  a  revolt.  There  mu.st  bo 
either  an  actual  or  constructive  8u.spcnsion  of  the  master's  com- 
mand, to  establish  a  revolt. 

«  U.  S.  v.  Staly,  1  W.  <»c  .M.  .'5.38. 


120  THE    LATV    OF    SHIPPING. 

and  ^v^th  a  design  to  trade  with  or  supply,  or  corre- 
spond with,  any  pirate  or  robber,  upon  the  seas ;  or 
if  any  person  or  persons  in  any  way  consult,  com- 
bine, confederate,  or  correspond  with  any  pirate  or 
robber  upon  the  seas,  knowing  him  to  be  guilty  of 
any  such  piracy  or  roljbery ;  or  if  any  seaman  con- 
fmes  the  master  of  any  ship  or  other  vessel,  or  en- 
deavors to  make  a  revolt  in  such  ship;  such  per- 
son or  persons  shall  be  imprisoned  not  exceeding 
three  years,  and  fined  not  exceeding  one  thousand 
dollars.'  The  offences  of  confining  the  master  and 
endeavoring  to  commit  a  revolt,  are  now  punished 
by  fine  not  exceeding  one  thousand  dollars,  or  by 
imprisonment  not  exceeding  five  years,  or  both,  ac- 
cording to  the  nature  and  aggravation  of  the  of- 
fence.^ 

98.  A  confinement  of  the  master,  within  the  mean- 
ing of  the  statute,  is  not  limited  to  mere  personal 
restraint  by  seizing  him  and  preventing  the  free 
movements  of  his  body,  nor  to  imprisonment  in  any 
specific  place,  as  locking  him  in  a  state-room  or 
cabin  ;  it  is  equally  a  confinement,  within  the  statute, 
to  prevent  him  from  free  movements  about  the  ship 
by  force,  or  intimidation,  as  by  limiting  him  to  walk- 
ing on  a  particular  part  of  the  deck  by  terror  of 
bodily  injury,  or  by  present  force;  if  he  is  sur- 
rounded, and  prevented  from  moving  where  he 
pleases,  according  to  his  rights  or  duty  as  master, 
under  threats  of  force,  or  if  he  is  restrained  from 
going  to  any  part  of  the  ship  by  an  avowed  determi- 

'  Act  1790,  ch.  36,  sec.  12. 
*  Act  of  March  3,  1835,  sec.  1. 


OF  OFFENCES  COMMITTED  AT  SEA.   121 

nation  of  the  crew,  or  of  any  part  of  tliem,  to  resist 
him,  and  to  employ  force  adequate  to  prevent  it, 
these  fall  within  the  meaning,  of  confinement.^ 

99.  If  the  person  of  the  master  is  in  fact  seized, 
or  if  he  is  in  fact  held  in  personal  restraint,  whether 
for  a  long  or  short  time  is  immaterial,  it  is  a  con- 
finement within  the  meaning  of  the  statute ;  and  it 
subjects  the  party  to  punishment,  unless  he  can  es- 
tablish that  it  was  done  in  justifiable  self-defence,  or 
for  some  other  legal  cause .^  If  the  master  assault  a 
seaman  without  cause,  he  may  restrain  the  master 
with  so  much  force,  and  so  long  as  is  necessary  for 
this  purpose.  And  if  he  is  suddenly  seized  by  the 
master,  and  without  any  intention  of  restraining  him 
of  his  liberty,  from  the  mere  impulse  of  nature  he 
takes  hold  of  the  master,  to  prevent  any  injury,  for 
an  instant  only,  and  as  soon  as  may  be  he  with- 
draws the  restraint,  so  that  the  act  may  be  fairly 
deemed  involuntary,  it  might  not,  perhaps,  be  deemed 
an  offence  within  the  Act,  even  though  the  seizing 
by  the  master  was  strictly  justifiable;  for  the  will 
must  co-operate  with  the  deed.  But  if  the  seizing 
by  the  master  be  justifiable,  and  he  does  not  exceed 
the  chastisement  which  he  is  by  law  entitled  to  in- 
flict, then  the  seaman  cannot  restrain  him,  but  is 
bound  to  submit ;  and  if  he  does  hold  the  master  in 


'  U.  8.  V.  Ilomnicr,  4  Mason,  lOG;  U.  8.  v.  Suiitli,  3  Wash. 
C.  C.  R.  78. 

"  U.  S.  V.  Savage,  5  Mason,  400.  A  mere  assault  and  battery 
cominittcd  at  soa  liy  a  seaman  upon  bis  commander,  does  not 
amount  to  a  conGnement  of  the  commander,  nor  fo  an  attempt  to 
excite  a  revolt,  witbiii  the  Act  of  Congress  of  Ainil  .'i(>,  17IH),  c. 
9,  s.  12;  U.  8.  V.  Lawrence,  1  Crancb's  C  C  11.  D4. 


122  THE   LAW  OF   siiirriNG. 

personal  oonfmcment  or  restraint,  it  is  an  offence 
Avithin  the  statute.' 

100.  When  the  seamen  combine  and  compel  the 
master  to  return  into  port,  upon  the  ground  of  the 
unseaworthiness  of  tlie  vessel,  it  does  not  amount  to 
an  endeavor  to  commit  a  revolt,  if  they  act  hona  fide 
and  the  ^•essel  is  actually  unseaworthy,  or  if  they  act 
l)omifiile  and  upon  reasonable  grounds,  and  apparent 
unseaworthiness.  Judge  Story,  in  the  case  of  U.  S. 
V.  Ashton,'  added  this  qualification  to  the  doctrine, 
namel}-,  that  in  addition  to  honest  motives,  reason- 
able grounds,  and  apparent  unseaworthiness,  it  must 
appear  at  the  trial  to  be  doubtful  whether  the  vessel 
be  unseaworthy  or  not.  For  if  it  should  appear 
that  the  vessel  actually  was  seaworthy,  then  the  of- 
fence is  committed,  no  matter  how  honest  the  motive 
or  how  apparently  unseaworthy  she  might  have 
been,  when  the  seamen  compelled  the  master  to  put 
into  port. 

101.  "If  the  ship,"  he  says,  "was  at  the  time 
clearly  seaworthy  and  fit  for  the  voyage,  whether 
the  seamen  acted  by  fraud  or  mistake,  or  upon  a  fair 
but  false  judgment  of  the  facts,  it  seems  to  me  the 
offence  was  committed."  Again  he  says :  "  Suppose 
the  ship  to  be  in  that  state  in  which  the  presump- 
tion of  apparent  unseaworthiness  really  arises,  and 
the  crew  Ijrma  fide  act  upon  that  presumption,  and 
the  Jury  should  be  of  opinion  that  they  acted  justi- 
fiably upon  that  presumption  at  the  time  ;  and  sup- 

'  U.  S.  V.  Thompson,  1  Sum.  1G8, 172. 
«  2  Sum.  13. 


OF    OFFENCES    COMMITTED    AT    SEA.       123 

pose  upon  the  trial  it  should  turn  out  that  there  is 
real  doubt  whether  the  ship  be  seaworthy  or  not ;  or 
upon  the  evidence  the  case  is  nearly  balanced  in  the 
conflict  of  credible  as  well  as  competent  testimony, 
and  the  Jury  should  on  the  whole  deem  the  prepon- 
derance of  evidence  just  enough  to  turn  the  scale  in 
favor  of  seaworthiness ;  but  not  to  place  it  entirely 
beyond  doubt — I  ask,  whether,  under  such  circum- 
stances, the  crew  ought  to  be  convicted  of  the  offence 
charged,  having  acted  upon  their  best  judgment 
fairly,  and  in  a  case  where  respectable,  intelligent, 
and  impartial  witnesses  should  assert,  that  they 
should  have  done  the  same ;  and  when  even  the 
Jury  themselves  might  adopt  the  same  opinion,  al- 
though there  might  be  an  error  in  the  fact  of  sea- 
worthiness, as  established  at  the  trial — I  have  great 
dilTiculty  in  coming  to  the  conclusion,  that  under 
such  circumstances  the  crew  were  guilty  of  the  of- 
fence charged."^ 

'  Lord  Abingcr,  in  suramiug  up  to  the  Jury,  in  llegina  v. 
M'Grogor,  1  Car.  &  K.  428,  said,  "By  revolt,  I  understand  some- 
thing like  rebellion  or  resistance  to  lawful  authority.  Persons 
who  rebel  against  and  resi*t  the  constituted  authorities,  if  they  arc 
subjects,  are  said  to  be  in  a  state  of  revolt;  and  if  the  crew  of  a 
ship  combine  together  to  resist  the  captain,  especially  if  the  object 
be  to  deprive  him  of  his  authority  altogether,  it  will,  in  my  opi- 
nion, amount  to  making  a  revolt.  Revolt  means  something  more 
than  the  disobedience  of  011(1  man.  You  will  say  whether  the  con- 
duct of  the  crew,  or  some  part  of  it,  amounted,  at  any  time,  to  a 
revolt,  or,  if  not,  whether  these  men  l)y  their  conduct  endeavored 
to  stir  up  a  revolt.  I  think  it  would  be  straining  the  evidence 
rather  too  far  to  say,  that  the  conduct  of -these  men  amounted  to  a 
revolt;  and  the  charge  of  making  a  revolt,  if  my  construction  of 
the  Act  is  correct,  will  fall  tn  the  ground,  and  the  (jucstion  will  be 
•upon  the  evidence,  whether,  by  their  conduct,  they  endeavored  to 


124  THE    LAW    OF    SHIPPING. 

102.  The  oflenoe  of  endeaYoring  to  commit  a  re- 
volt is  a  substantive  oflence,  and  consists  in  the  en- 
deavor of  the  crew  of  a  vessel,  or  any  one  or  more 
of  tliom,  to  overthrow  the  legitimate  authority  of 
her  commander,  with  intent  to  remove  him  from  his 
command,  or  against  his  will  to  take  possession  of 
the  vessel,  by  assuming  the  government  and  navi- 
gation of  her,  or  by  transferring  their  obedience  from 
the  lawful  commander  to  some  other  person.'  When- 
ever b}'  the  overt  acts  of  the  crew,  the  authority  of 
the  master  in  the  free  navigation  or  management  of 
the  ship,  or  in  the  free  exercise  of  his  rights  and 
duties  on  board,  is  entirely  overthrown,  and  there  is, 
intentionally  caused  by  such  acts,  a  suspension,  ac- 
tual or  constructive,  of  his  power  of  command,  it  is 
a  revolt  of  the  crew.  Direct,  positive  force  upon  the 
master  is  not  essential ;  positive  constraint  or  im- 
prisonment of  the  master  is  not  essential.  A  total 
refusal  to  perform  any  duty  on  board,  until  he  has 
yielded  to  some  illegal  demand  of  the  crew,  when  it 
has  produced  de  facto  a  compliance,  or  a  suspension 
of  his  power  of  command,  is  a  revolt.  And  any  act, 
or  attempt,  or  combination  to  produce  such  a  revolt, 
is  an  endeavor  to  make  a  revolt.  These  cases  are 
not  put  as  the  only  ones  in  which  a  revolt  may  exist. 

excite  a  revolt.  The  question  of  whether  the  ship  was  properly 
fitted  up  and  found  is  not  material,  for  it  has  been  decided  in  a 
case  in  this  Court,  that,  although  there  be  real  grievances  to  re- 
dress, yet  it  is  not  an  answer  to  a  charge  of  attempting  to  make  a 
revolt."  See  Rex  v.  Hustings,  1  M.  C.  C.  R.  82.  His  Lordship 
was  also  of  opinion  upon  the  construction  of  the  Act  of  Parliament 
(11  &  12  Will.  3,  c.  7,  s.  0),  that  the  resistance  of  one  person  to 
the  authority  of  the  captain  would  not  be  a  revolt. 
'  11  Wheat.  R.  417,  U.  S.  v.  Kelly. 


OF  OFFENCES  COMMITTED  AT  SEA.   125 

They  are  put  merely  as  examples  and  illustrations 
of  the  doctrine/ 

103.  A  mere  act  of  disoloedience  to  a  lawful  com- 
mand of  the  officers,  is  not  of  itself  an  endeavor  to 
create  a  revolt;  but,  to  amount  to  the  offence,  it 
must  be  combined  with  an  attempt  to  excite  others 
of  the  crew  to  a  general  resistance  or  disobedience 
of  orders,  or  a  general  neglect  and  refusal  of  duty.^ 
Perhaps,  if  the  crew  were  to  combine  together  to 
resist  a  single  lawful  order  of  the  master,  or  to  com- 

*  U.  S.  V.  Haines,  5  Mason,  27G,  277.  This  case  has  been 
thought  to  conflict  with  the  doctrine  laid  down  by  the  Supreme 
Court  of  the  United  States,  in  the  case  of  U.  S.  v.  Kelly,  11 
Wheat.  417.  But  such  was  not  the  opinion  of  Judge  Story.  "It 
is  supposed,"  he  says,  "  that  the  case  of  U.  S.  v.  Kelly,  inculcates 
a  different  doctrine.  If  it  does  we  are  certainly  bound  by  it.  But 
I  feel  the  utmost  moral  certainty  that  such  was  not  the  under- 
standing of  the  Court  itself;  and  though  there  is  some  slight  foun- 
dation in  the  language  used  in  that  opinion  for  the  present  argu- 
ment, a  close  examination  of  it  will  not  justify  the  conclusion,  that 
it  is  at  variance  with  what  we  have  now  asserted  as  our  own  opi- 
nion. That  case  was  brought  before  the  Court  for  the  mere  pur- 
pose of  ascertaining,  whether,  as  the  Act  of  Congress  does  not 
define  the  offence  of  endeavoring  to  make  a  revolt,  it  was  compe- 
tent for  a  Court  of  law  to  give  a  judicial  definition  of  the  offence. 
There  had  been  a  doubt  expressed  elsewhere,  whether  it  was  not 
indispensable  that  Congress  should  have  defined  what  a  revolt  was, 
before  the  Court  could  proceed  to  punish  it ;  and  that  doubt  had 
been  followed  up  by  a  decision,  that  such  a  definition  by  (Congress 
was  indi.spon.sable,  and  that  decision  had  led  to  an  acquittal  of  the 
person  cliargc-d  with  the  offence.     The  point  was  brought  to  the 

Supreme  Court  for  a  final  decision The  Court 

look  to  the  fact,  wlictlier  there  is  an  overthrow  of  the  master's 
authority,  or  a  removal  of  him  from  his  command,  intended;  aii<l 
not  to  the  mode  by  wliich  it  is  accomplished." 

'  U.  S.  V.  Smith,  1  Ma.son,  147,  148. 


126  THE    LAW    OF    SHIPPING. 

pel  him  by  force  to  yield  up  his  authority  in  a  single 
case,  and  were  to  proceed  in  the  execution  of  their 
purpose,  all  their  acts,  done  towards  its  accomplish- 
ment, might  be  properly  deemed  endeavors  to  make 
a  revolt.    The  endeavor  to  make  a  revolt  necessarily 
implies  an  attempt  to  stir  up  others  of  the  crew  to  a 
resistance  or  rebellion  against  the  lawful  authority  of 
the  master  and  officers ;  and  the  oftence  is  not  com- 
mitted, if  the  party  does  not  attempt  or  endeavor  to 
combine  or  excite  others  of  the  crew  to  aid  in  his 
unlawful  purposes.'     If  the   crew  have  combined 
together  to  disobey  orders,  and  to  do  no  duty,  the 
offence  is  complete  by  such  combination,  although 
no  orders  have  been  subsequently  given.    But  a  sim- 
ple refusal,  by  one  or  more,  to  do  duty,  does  not 
amount  to  the  offence,  unless  it  is  done  by  a  common 
combination,  or  to  effect  a  common  purpose.     In 
short,  the  parties  must  act  together,  and  with  the 
intention  of  mutual  encouragement  and  support.^ 

104.  It  is  by  no  means  necessary  that  there  should 
be  any  previous  deliberate  combination  for  mutual 
aid  and  encouragement,  or  any  preconcerted  plan  of 
operations  to  effect  the  illegal  object.  On  the  con- 
trary, however  sudden  may  be  the  occurrence,  or 
unexpected  the  occasion,  of  such  disobedience  or 
resistance,  those  who  take  a  part  in  it,  whether  by 
words  or  by  deeds,  by  direct  acts  of  aid  or  assistance, 
or  by  encouragement  or  incitement,  are  in  contem- 
plation of  law  guilty  of  the  offence.     Their  conduct, 

'  U.  S.  V.  Smith,  1  Mason,  147,  148. 

•  U.  S.  V.  Barker,  5  Mason,  404,  407 ;  U.  S.  v.  Forbes,  Crabbe's 
E.  558. 


OF  OFFENCES  COMMITTED  AT  SEA.   127 

under  such  circumstances,  amounts  to  an  endeavor 
to  commit  a  revolt  by  overthrowing,  pro  Jiac  vice,  the 
Lawful  authority  of  the  commanding  officer  of  the 
shiiD^ 

105.  The  crew  are  bound  to  service  on  board  after 
the  original  master  ceases  to  be  such.  They  are 
bound  to  serve  under  the  mate,  acting  as  master, 
under  a  regular  substituted  appointment.  The  con- 
tract of  seamen  for  the  voyage  is  not  suspended  or 
extinguished  by  the  original  master's  ceasing  to  be 
such,  by  death,  by  removal,  by  resignation,  or  other- 
wise. They  are  bound  to  perform  the  voyage  under 
any  person  who  is  lawfully  substituted  master  for 
the  voyage ;  for  their  engagement  is,  in  substance, 
an  engagement  with  the  owners  for  the  voyage,  and 
not  with  a  particular  master,  so  long  as  he  remains 
such.  But  if  the  substituted  master  is  grossl}-  in- 
competent to  the  duties  of  his  station,  from  want  of 
due  skill  uv  from  grossly  bad  habits,  or  from  profli- 


'  U.  S.  V.  Morrison,  1  Sum.  448.  By  the  2(1  section  of  the 
Act  of  3(1  March,  1835,  it  is  provided,  that  if  any  one  or  more  of 
the  crew  of  any  American  ship  or  vessel  on  the  high  seas,  or  any 
otlier  waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  .States,  shall  endeavor  to  make  a  revolt  or  mutiny  on  board 
such  ship  or  vessel,  or  shall  combine,  conspire,  or  confederate  with 
any  other  person  or  persons  on  board  to  make  such  revolt  or  mutiny, 
or  shall  solicit,  incite,  or  stir  up  any  other  or  others  of  the  crew  to 
disobey  or  resist  the  lawful  orders  of  the  master  or  other  officer  of 
Buch  ship  or  vessel,  or  to  neglect  or  refuse  their  i.rnpfr  duty  on 
board  thereof,  or  shall  unlawfully  confine  the  master  or  other  com- 
manding officer  thereof,  every  such  person  so  olTcnding  shall,  on 
conviction  thereof,  be  punished  by  line  not  exceeding  one  thousand 
dollars,  <ir  by  imprisonment  not  exceeding  five  years,  or  by  both, 
according  to  the  nature  and  aggravation  of  the  ofl'ence. 


12S  THE    LAW    OF    SHIPPING. 

gate  and  cruel  behavior,  that  may  furnish  a  suitable 
excuse  for  a  refusal  to  do  duty,  or  to  remain  by  the 
ship.  ]^ut  such  a  case  must  be  clearly  made  out, 
beyond  all  reasonable  doubt;  and  it  is  not  to  be 
presumed  or  inferred.  Any  acts,  therefore,  which, 
if  committed  under  the  original  master,  would 
amount  to  a  revolt,  or  an  endeavor  to  commit  a  re- 
volt, will  amount  to  the  same  offence,  if  committed 
under  a  regularly  substituted  master.'  When  there 
is  a  deviation  from  the  voyage  described  in  the  ship- 
ping articles,  the  seamen  are  discharged  from  any 
obligation  of  proceeding  farther  on  the  voyage.  And 
their  refusal  to  do  duty,  after  such  deviation,  does 
not  in  law  amount  to  an  endeavor  to  commit  a  re- 
volt, under  the  Act  of  Congress.^ 

»  U.  S.  V.  Cassedy,  2  Sum.  K.  582. 

'  U.  S.  V.  Matthews,  2  Sum.  R.  470 ;  Act  of  Sd  March,  1835, 
ch.  40,  sec.  2. 


129 


CHAPTER   V. 

OF  THE  DISCHARGE  OF  SEAMEN. 

I.  Of  the   Causes   that  Justify  the   Master  in   Dis- 
charging A  Seaman. 
II.  Of  the  Mate,  and  the  Master's  Authority  to  Dis- 
charge OR  Disrate. 
III.  Of  the  Laws  for  the  Relief  of  Seamen. 

lOG.  We  considered,  in  a  previous  chapter,  the 
provisions  of  our  laws  with  respect  to  the  hiring  of 
seamen,  and  the  means  for  their  comfort  during  the 
progress  of  the  voyage.  We  are  now  to  consider  the 
Acts  which  more  immediately  concern  the  protection 
of  sick  and  disabled  mariners.  It  will  be  proper, 
however,  in  the  first  place,  to  notice  those  Acts 
which  relate  to  the  maintenance  and  return  of  Ame- 
rican seamen  who  are  destitute,  and  in  a  foreign 
port. 

107.  The  Act  of  1803'  provides,  that  "whenever 
a  ship  or  vessel,  belonging  to  a  citizen  of  the  United 
States,  shall  be  sold  in  a  foreign  country,  and  her 
company  discharged,  or  when  a  seaman  or  mariner, 
a  citizen  of  the  United  States,  shall  with  his  own 
consent  be  discharged  in  a  foreign  country,  it  shall 
be  the  duty  of  the  master  or  commander  to  produce 

>  Act  U.  S.  28tli  Feb.,  1803,  ch.  G2,  bgc.  3. 

9 


loO  THE    L\^V    OF    siiirriNG. 

to  the  consul,  vice-consul,  commercial  agent,  or  vice- 
commercial  agent,  the  list  of  his  ship's  company, 
cert i Hod  as  aibresaicl,  and  to  pay  to  such  consul, 
vice-consul,  commercial  agent,  or  vice-commercial 
agent,  for  every  seaman  or  mariner  so  discharged, 
beins:  desisxnated  on  such  list  as  a  citizen  of  the 
United  States,  three  months'  pay,  over  and  above 
the  wages  which  may  then  be  due  to  such  mariner 
or  seaman,  two-thirds  thereof  to  be  paid  by  such 
consul  or  commercial  agent  to  each  seaman  or  mari- 
ner so  discharged,  upon  his  engagement  on  board  of 
any  vessel  to  return  to  the  United  States,  and  the 
other  remaining  third  to  be  retained  for  the  purpose 
of  creating  a  fund  for  the  payment  of  the  passages 
of  seamen  or  mariners,  citizens  of  the  United  States, 
who  may  be  desirous  of  returning  to  the  United 
States,  and  for  the  maintenance  of  American  seamen 
who  may  be  destitute,  and  may  be  in  such  foreign 
port ;  and  the  several  sums  retained  for  such  fund, 
shall  be  accounted  for  with  the  Treasury,  every  six 
months,  by  the  persons  receiving  the  same." 

108.  This  statute  applies  only  to  the  case  of  a 
voluntary  sale  of  the  vessel,  and  to  a  strictly  volun- 
tary discharge  of  a  mariner,  and  not  to  a  sale  or  dis- 
charge, rendered  unavoidable  by  an  imperious  and 
overruling  necessity.  A  sale  is,  within  the  mercan-'' 
tile  and  reasonable  sense  of  the  word,  necessary 
when  the  vessel  cannot  be  repaired  but  at  a  great 
sacrifice  of  the  interests  of  the  owners.  And  when 
a  voyage  is  broken  up  for  such  cause,  the  seamen 
are  not  properly  discharged,  but  the  whole  enter- 
prise is  brought  to  a  premature  conclusion  by  a  for- 


OF    THE    DISCHARGE    OF    SEAMEN.  131 

tuitous  event,  for  which  neither  party  is  respon- 
sible/ 

109.  But  if  the  damage  is  not  of  so  grave  a  cha- 
racter but  that  the  vessel  may  well  be  repaired 
within  a  reasonable  time,  and  at  a  reasonable  ex- 
pense, the  case  will  not  be  withdrawn  from  the 
statute  because  the  owner  or  master  happens  to  meet 
with  an  opportunity  of  disposing  of  her  on  advan- 
tageous terms,  and  making  a  better  speculation  by 
the  sale  than  by  repairing  and  continuing  the  voy- 
age.^     In  the  case  of  capture,  where  the   seamen 

•  The  Dawn,  Ware's  R.  485;  S.  C.  Davies'  R.  121. 

*  The  Juniata,  Gilpin's  R.  193  ;  The  Dawn,  sujva.  In  the 
case  of  The  Juniata,  Judge  Hopkinson  observed,  that  "  if  the  ne- 
cessity of  a  discharge  can  ever  afford  a  legal  reason  for  the  sea- 
men not  being  paid,  it  must  at  all  events  be  necessity  of  the  most 
urgent  kind;  not  such  as  will  enable  a  merchant,  desirous  of 
changing  his  voyage,  to  get  rid  of  his  seamen  without  expense.  He 
must  have  no  option.  Ilis  vessel  must  be  a  wreck.  If  he  can 
repair  her,  he  must  do  so ;  or  if  he  does  not  choose,  he  must  pro- 
vide for  his  seamen,  who  are  thrown  ashore  destitute,  by  a  contrary 
determination.  If  he  is  bound,  as  he  undoubtedly  is,  when  his 
vessel  is  damaged,  to  send  on  the  cargo  to  its  place  of  destination, 
so  is  he  bound  to  provide,  in  the  manner  the  law  has  pointed 
out,  for  the  future  welfare  of  his  crew,  with  whom  his  contract 
has  been  suddenly  broken.  But  docs  the  law  admit  even  the  ab- 
solute necessity  of  abandoning  the  voyage,  to  be  a  ground  for  dis- 
charging the  seamen  without  any  future  provision?  A  previous 
section  sccins  to  designate  tlic  only  circumstances  under  which  a 
captain  is  allowed  to  leave  a  seaman,  without  such  provision,  in  a 
foreign  country,  and  they  arc  when  he  dies,  absconds,  or  is  forci- 
bly impressed  into  other  service.  It  does  not  include  the  aban- 
donment of  the  voyage,  oven  when  caused  liy  necessity,  because  it 
was  intended  that  a  provision  for  sufh  an  event  should  always  bo 
made.     The  owner  is  to  calculate  for  it  exactly  as  for  the  other 


132  THE    LAW    OF    SHIPPING. 

remain  hy  the  vessel  and  await  the  resnlt  of  the  prize 
proceedings,  if  she  is  released  and  able  to  proceed  on 
the  voyage,  bnt  the  crew  are  discharged,  they  are 
•ntitlcd  to  the  three  months'  pay  provided  by  the 
statnte.'     The  Act  applies  as  well  to  a  voluntary 


e 


expenses  of  his  voyage;  it  is  as  much  a  part  of  them  as  are  the 
wa"es  stated  in  the  shipping  articles.  It  is  not  to  be  regarded  as 
a  penalty  for  a  default,  but  a  contribution  incident  to  navigation." 

In  the  case  of  Luscomb  v.  Osgood,  7  Law  Rep.  132,  a  minor, 
vrithout  the  knowledge  of  his  father,  concealed  himself  on  board  a 
whaling  vessel  before  she  sailed  from  Salem,  and  was  not  disco- 
vered by  the  master  until  she  had  dismissed  her  pilot.  When 
about  a  month  out,  the  master  stopped  at  Fayal,  where  there  was 
an  American  consul,  but  said  nothing  to  him  about  the  boy.  The 
boy  performed  the  duty  of  a  seaman  during  the  whole  voyage,  and 
when  eighteen  months  out,  signed  the  shipping  articles.  It  was 
held,  that  the  father  of  the  boy  was  entitled  to  wages  from  the 
time  the  ship  sailed  from  Fayal.  The  master  might  have  left  him 
with  the  consul  without  paying  three  months'  wages,  as  in  case  of 
a  seaman  discharged  in  a  foreign  port,  and  as  required  by  the  Act 
of  1803,  supra.  In  such  a  case,  it  would  have  been  the  duty  of 
the  consul  to  provide  for  and  send  him  to  the  United  States. 

»  The  Saratoga,  2  Gallis.  K.  1G4.  "  The  question  of  eventual 
loss  upon  repairing  and  proceeding  on  the  voyage,  is,  I  apprehend," 
said  Judge  Ware,  in  the  case  of  The  Dawn,  Ware's  R.,  supra,  "  to 
be  viewed  in  relation  to  the  party  who  is  ultimately  to  bear  it. 
If  the  owner  is  highly  insured,  he  may  think  it  for  his  interest  to 
abandon  and  sell  the  vessel  and  convert  a  partial  into  a  total  loss, 
when,  if  he  were  uninsured,  he  might  find  his  interest  would  be 
best  served  by  repairing  her  and  proceeding  on  the  voyage.  In 
such  a  case  it  appears  to  me,  that  if  the  owner,  or  the  master  for 
him,  chooses  to  sell  as  the  easiest  way  of  extricating  him  from  the 
disaster  by  shifting  the  loss  or  a  part  of  it  upon  the  underwriters, 
it  must  be  considered  as  a  voluntary  sale,  and  the  seamen  entitled 
to  their  two  months'  wages.  These  are  calculations  in  which  the 
interest  the  seamen  have  in  prosecuting  the  voyage  and  earning 
their  wages,  are  not  taken  into  the  account.  The  master  looks 
solely  to  the  interests  of  the  owner." 


OF    THE    DISCHARGE    OF    SEAMEN.  133 

sale  of  the  vessel  for  some  reason  occurring  after  the 
voyage  has  begun,  as  to  a  case  where  the  original 
object  of  the  voyage  was  a  sale  of  the  vessel  abroad. 

110.  It  should  be  here  observed,  that  although 
the  Act  of  Congress  declares  that  the  three  months' 
wages  shall  be  paid  by  the  master,  and  to  the  con- 
sul ;  yet,  if  they  are  not  so  paid,  and  the  master  has 
returned,  they  may  be  recovered  here  from  the 
owner,  by  a  libel  in  the  Admiralty,  and  the  Court 
will  order  them  to  be  distributed  to  the  United 
States  and  the  seamen,  in  the  proportion  directed  by 
the  statute. 

111.  It  would  certainly  seem,  that  not  only  the 
terms  of  the  law,  but  the  objects  to  be  attained  by 
it,  to  wit,  the  return  of  American  seamen  to  their 
country,  and  their  maintenance  when  found  desti- 
tute in  a  foreign  port,  all  require  that  this  money 
should  be  paid  to  the  consul  in  the  foreign  port 
where  the  seaman  is  discharged,  and  that  no  other 
payment  or  oljligation  to  pay  is  recognised  or  created 
by  the  Act.  But  upon  the  ground  that  the  wages 
would  be  entirely  lost,  and  the  law  violated  with  im- 
punity, were  such  a  construction  of  the  Act  to 
be  adopted,  the  Courts  have  enforced  tlie  payment  of 
the  wages  licre,  when  the  master  lias  refused  or 
omitted  to  i)ay  them  abroad.' 


'  Emorson  v.  TTowland,  1  Mason,  45;  Orno  v.  Townsend,  4 
Mason,  541  ;  The  Saratoga,  2  Gallis.  181  ;  The  Dawn,  Ware's  R. 
485;  but  see  contra  Ogden  v.  Orr,  12  John's  It.  li;{  ;  The  .Juni- 
ata, Gilpin's  II.  198,  In  this  latter  case,  JuJgc  llojikinson  felt 
himself  compelled,  in  deference  to  the  opinion  of  Judge  Story,  in 


134  THE    LAW    OF    SIIIPriNG. 

112.  The  Act  of  1840/  without  directly  repealing 
any  of  the  provisions  of  the  Act  of  1803,  has  very 


Onio  V.  Townscnd,  supra,  to  secure  a  payment  of  the  wages,  but 
bis  own  opinion  was,  that  the  Act  of  Congress  did  not  require  or 
permit  the  payment  to  be  made  elsewhere  than  to  the  consul  at 
the  port  of  discharge.  See  also  Knowlton  v.  Boss,  12  Law  Hep. 
13.  It  was  observed  by  Judge  Sprague,  in  this  case,  that  the 
payment  of  two  months'  additional  wages  for  discharge  in  a 
foreign  port,  under  the  Act  of  1803,  is  enforced  in  Admiralty; 
''but  this,"  he  proceeds  to  say,  '<is  given  specifically,  as  wages  is 
recoverable  only  by  the  mariner  himself,  and  is  in  fact  a  kind  of 
statute  substitution  for  his  original  contract."  Knowlton  v.  Boss, 
supra,  was  a  libel  in  the  Admiralty  by  a  carpenter  of  a  merchant 
ship  against  the  master.  The  allegations  were,  that  the  master 
flogged  and  imprisoned  the  libellant  without  justifying  cause ; 
refused  him  leave  to  see  the  American  consul  when  reasonably 
demanded,  and  compelled  him  to  leave  the  vessel,  whereby  he  lost 
his  wages  for  the  return  voyage.  Besides  damages,  the  libel 
claimed  the  fine  imposed  by  the  17th  section  of  the  Act  of  1840, 
ch.  48.  This  section  provides,  that  if  the  master  shall  refuse  to 
perform  the  duties  imposed  by  the  Act,  or  shall  violate  its  provi- 
sions, "  he  shall  be  liable  to  each  and  every  individual  injured 
thereby,  in  damages,  and  shall,  in  addition  thereto,  be  liable  to 
pay  one  hundred  dollars  for  each  and  every  offence,  to  be  re- 
covered by  any  person  suing  therefor  in  any  Court  of  the  United 
States,  in  the  District  where  such  delinquent  may  reside  or  be 
found." 

Judge  Sprague  decreed  compensation  for  the  punishment,  the 
refusal  to  see  the  consul,  and  the  loss  of  wages.  But  he  had 
doubts  whether  the  Admiralty  had  jurisdiction  to  enforce  the 
fine.  **  No  case,"  he  said,  "  bad  been  cited  of  a  fine  recovered  in 
Admiralty,  which  was  given  specifically  as  a  fine,  to  be  recovered 
by  any  citizen  suing  therefor.  But  if  this  fine  is  recoverable  in 
Admiralty,  there  i.s  an  objection  to  the  libcllant's  uniting  in  one 
libel,  a  claim  for  personal  damages,  with  a  claim  for  a  fine,  which 
he  sues  for  in  a  different  capacity,  that  of  a  common  informer.  I 
am  of  opinion  that  the  decree  should  be  confined  to  damages." 

'  Act  ri.  S.  July  20th,  1840,  ch.  23,  s.  5,  6,  7, 17. 


OF    THE    DISCHARGE    OF     SEAMEN.  135 

much  enlarged  the  power  of  consuls,  or  commercial 
agents,  in  foreign  ports,  to  discharge  mariners  from 
their  vessels.  It  empowers  the  consul,  or  commer- 
cial agent,  upon  application  of  both  the  master  and 
mariner,  to  discharge  the  latter,  if  he  thinks  it  expe- 
dient, without  requiring  the  payment  of  three 
months'  wages,  under  the  Act  of  1803,  or  any  other 
sum  of  money.  He  may,  however,  make  such  terms 
with  the  master,  as  will  secure  the  United  States 
from  liability  to  support  the  mariner  so  discharged. 
The  public  officer  discharging  the  mariner  under 
this  Act,  is  required  to  make  an  entry  thereof  upon 
the  list  of  the  crew,  and  upon  the  shipping  articles. 
When  the  mariner  has  deserted,  and  been  reclaimed 
by  the  consul,  if  on  inquiry,  he  finds  that  the  deser- 
tion was  caused  by  unusual  or  cruel  treatment,  he 
may  discharge  the  mariner,  who  shall,  in  such  case, 
be  entitled  to  receive  three  months'  pay,  in  addition  to 
his  wages  to  the  time  of  his  discharge,  and  the  officer 
discharging  him  shall  enter  upon  the  crew  list  and 
shipping  articles,  the  cause  of  discharge,  and  the  par- 
ticulars in  which  the  cruelty  or  unusual  treatment 
consisted,  and  subscribe  his  name  thereto  officially. 
While  the  acts  of  the  consul,  in  pursuance  of  autho- 
rity conferred  on  him  by  law,  Ijind  all  parties  afiected 
by  them,  it  must  Ijc  understood  that  it  is  no  justifi- 
cation for  nil  illcirnl  act  of  llie  master,  that  it  was 
done  by  tlie  advice  or  suggestion  of  an  American 
consul.' 

'  Wilson  V.  The  Brig  Mary,  Cilpin's  R.  31.  A  consul's  certifi- 
cate is  not  evidence  of  acts  not  ofBcial,  or  witliin  his  pcrsunal 
knowledge.  The  Independence,  Crabbe's  R.  54 ;  see  also  The 
Coriolanus,  Ibid.  239. 


136  THE    LAW    OF    siiirriNG. 

llo.  To  prevent  seamen  employed  in  vessels  be- 
longing to  citizens  of  the  United  States,  in  cases  of 
shipwreck,  sickness,  or  captivity,  from  suffering  in 
foreign  ports,  it  is  made  the  duty  of  our  consuls, 
vice-consuls,  commercial  agents,  or  vice-commercial 
agents,  from  time  to  time,  to  provide  for  the  mari- 
ners and  seamen  of  the  United  States,  who  may  be 
found  destitute  within  their  districts,  respectively, 
suilicient  subsistence  and  passages  to  some  port  in 
the  United  States,  in  the  most  reasonable  manner, 
at  the  expense  of  the  United  States,  subject  to  such 
instructions  as  the  Secretary  of  State  shall  give;  and 
that  all  masters  and  commanders  of  vessels  belonging 
to  citizens  of  the  United  States,  and  bound  to  some 
port  of  the  same,  are  hereby  required  and  enjoined 
to  take  such  mariners  or  seamen  on  board  of  their 
ships  or  vessels,  at  the  request  of  the  said  consuls, 
vice-consuls,  or  commercial  agents,  respectively,  and 
to  transport  them  to  the  port  in  the  United  States  to 
which  such  ships  or  vessels  may  be  bound,  on  such 
terms,  not  exceeding  ten  dollars  for  each  person,  as 
may  be  agreed  between  the  said  master  and  consul, 
or  commercial  accent.  And  the  said  mariners  or  sea- 
men  shall,  if  able,  be  bound  to  do  duty  on  board 
such  ships  or  vessels,  according  to  their  several  abili- 
ties :  Provided,  That  no  master  or  captain  of  any 
ship  or  vessel  shall  be  obliged  to  take  a  greater 
number  than  two  men  to  every  one  hundred  tons 
burthen  of  the  said  ship  or  vessel,  on  any  one  voy- 
age ;  and  if  any  such  captain  or  master  shall  refuse 
the  same,  on  the  request  or  order  of  the  consul,  vice- 
consul,  commercial  agent,  or  vice-commercial  agent, 
such  captain  or  master  shall  forfeit  and  pay  the  sum 


OF    THE    DISCHARGE    OF    SEAMEN.         137 

of  one  hundred  dollars  for  each  mariner  or  seaman  so 
refused ;  to  be  recovered  for  the  benefit  of  the  United 
States,  in  any  Court  of  competent  jurisdiction.  And 
the  certificate  of  any  such  consul  or  commercial 
agent,  given  under  his  hand  and  official  seal,  shall 
he  prima  facie  evidence  of  such  refusal,  in  any  Court 
of  law  having  jurisdiction  for  the  recovery  of  the 
penalty  aforesaid.^ 

114.  It  will  be  observed,  that  the  mutuality  of 
obligation  imposed  by  this  statute  creates  a  contract, 
which,  in  consideration  of  support  and  transporta- 
tion by  the  master,  obliges  the  seaman  to  perform 
all  the  duties  of  one,  and  creates  all  the  relative 
obligations  and  duties  of  master  and  servant,  which 
exist  in  cases  of  articled  seamen.  He  is  liable  to  be 
punished  for  offences  committed  against  any  law  of 
the  United  States,  in  the  same  manner  and  to  the 
same  extent  as  if  he  were  one  of  the  original  crew.^ 

115.  The  action  for  the  penalty  denounced  by 
this  section  of  the  Act,  must  be  brought  in  the  name 
of  the  United  States,  and  not  of  the  consul  or  vice- 
consul.  The  certificate  of  the  consul  is  2^rimd  facie 
evidence  of  the  refusal  of  the  master  to  take  the 
seaman  on  board,  and  of  all  the  fiicts  stated  in  the 
enacting  clause  of  the  section,  which  is  necessary  to 
bring  the  ca.se  within  the  penalty;  for  all  those  facts 
are  indispensable  to  make  it  "  such  refusal"  as  the 
statute  contemplates.  The  statute  intended  to  make 
the  consul's  certificate  the  proper  and  ordinary  proof, 

'  Aft  I'.  .S.  28th  Feb.,  1803,  ch.  02,  sec.  4. 
'  U.  S.  V.  Sharp,  1  I'ctcrs'  C.  C.  K.  118,  121. 


138  THE    LAW    OF     SHIPPING. 

though  not  conchisive  proof,  of  all  the  facts  to  sus- 
tain a  suit  for  the  penalty.' 

IIC).  If  a  seaman  be  entitled  to  the  privileges  of 
an  American  seaman,  and  be  destitute,  the  consul  is 
the  proper  judge  on  board  of  what  ship  he  should  be 
placed,  for  his  return  to  the  United  States.^  The 
mere  fact  that  a  seaman  has  deserted  from  an  Ame- 
rican ship,  whether  she  be  in  port  or  not  at  the  time 
when  the  seaman  became  destitute,  does  not  super- 
sede the  authority  of  the  consul  to  require  another 
American  ship  to  bring  him  to  the  United  States. 
Mere  desertion  does  not  oust  the  consul's  authority, 
or  disqualify  the  seaman  from  the  protection  and 
assistance  intended  by  the  Act.^  Foreigners,  while 
employed  as  seamen  in  the  merchant  ships  of  the 
United  States,  are  within  the  protection  of  our  laws, 
and  are  deemed  to  be  "mariners  and  seamen  of  the 
United  States"  within  the  language  and  policy  of  the 
Act  of  1803,  which  we  are  considering." 

'  Matthews  v.  Offlcy,  3  Sum.  E,.  115;  see  The  Independence, 
Crabbe's  R.  54. 

»  Ibid.  3  jbid. 

*  Ibid.  "  It  seems  to  mc,"  said  Judge  Story,  in  this  case, 
"  that  where  a  foreign  seaman  has  once  acquired  a  domicil  in  the 
United  States,  and  is  engaged  in  our  merchants'  service,  and  re- 
tains, if  I  may  so  say,  the  habits  of  that  service,  and  upon  every 
discharge  from  one  ship  still  has  the  animus  revertcndi  to  that 
service  and  domicil,  he  must  be  treated  as  intending  to  retain  his 
acquired  character  of  an  American  seaman,  and  his  acquired 
American  domicil.  Some  overt  act  on  his  own  part,  such  as 
engaging  in  some  foreign  service,  or  resuming  his  original  native 
character,  or  disowning  his  American  character  and  domicil,  seems 
to  me  indispensable  to  rebut  the  presumption  that  he  still  attaches 
himself  to  the  American  service.     It  does  not  strike  me,  that  his 


OF    THE    DISCHARGE    OF    SEAMEX.  139 

117.  By  tlie  Act  of  1825,^  Congress  struck  directly 
at  the  unlawful  discharge  of  mariners  abroad.  That 
Act  provides,  that  if  any  master  or  commander  of 
any  ship  or  vessel,  belonging,  in  whole  or  in  part,  to 
any  citizen  or  citizens  of  the  United  States,  shall, 
during  his  being  abroad,  maliciously  and  without 
justifiable  cause,  force  any  officer  or  mariner  of  such 
ship  or  vessel  on  shore,  or  leave  him  behind,  in  any 
foreign  port  or  place,  or  refuse  to  bring  home  again, 
all  such  of  the  officers  and  mariners  of  such  ship  or 
vessel,  whom  he  carried  out  with  him,  as  are  in  a 
condition  to  return,  and  are  willing  to  return,  wdien 
he  shall  be  ready  to  proceed  on  his  homeward  voy- 
age, every  master  or  commander  so  offending,  shall, 
on  conviction  thereof,  be  punished  by  fine,  not  ex- 
ceeding five  hundred  dollars,  or  by  imprisonment, 
not  exceeding  six  months,  according  to  the  aggrava- 
tion of  the  offence." 

118.  The  section  of  the  Act  which  we  have  here 
recited,  enumerates  three  distinct  and  independent 
offences.     First,  The  maliciously,  and  without  justi- 

dcscrtion  from  another  American  ship,  at  least  unless  followed  up 
by  engaging  in  some  foreign  service,  ought  to  have  such  an  effect. 
If  his  desertion  be  without  good  cause,  and  unjustifiable,  although 
he  has  broken  the  shipping  articles  on  his  side,  it  is  not  dissolved. 
lie  cannot  shake  off  his  contract  in  this  way.  lie  is  still,  in  con- 
templation of  law,  a  seaman  of  the  ship  from  which  he  deserted, 
and  may  be  compelled  to  return  to  duty.  If,  on  the  other  hand, 
upon  his  desertion,  the  master  justifiably  declines  to  take  him  on 
board  again,  and  cuts  him  adrift  from  the  ship's  service,  ho  will 
then  be  discharged  froiu  the  ship's  service;  but  it  by  no  means 
follows,  that  he  is  to  be  deemed  discharged  from  the  American 
marine  service  altogether,  or  that  he  has  ceased,  I'pw  facio,  against 
his  will,  to  be  entitled  to  the  protection  of  American  seamen." 
'  Act  U.  S.,  ch.  27G,  sec.  10. 


140  THE  LAW  OF   snirriNG. 

fiable  cause,  forcing  any  officer,  or  mariner,  on  shore 
in  any  foreign  port;  Secondly,  The  maliciously,  and 
without  justifiable  cause,  leaving  such  officer,  or 
mariner,  behind  in  any  foreign  port ;  and  Thirdly, 
The  maliciously,  and  without  justifiable  cause,  re- 
fusins  to  briim-  home  a^ain,  all  the  officers  and  mari- 
ners  of  the  ship  in  a  condition  to  return  and  willing 
to  return  on  the  homeward  voyage.  It  is  sufficient, 
therefore,  to  constitute  an  offence  within  the  true 
intent  of  the  statute,  if  the  officer,  or  mariner,  is 
either  forced  on  shore  or  left  behind,  or  refused  to 
be  brought  home.  Hence,  in  a  case  where  a  mari- 
ner applied  for  a  discharge,  which  w^as  refused  by 
the  master,  and  in  consequence  used  abusive  lan- 
guage, for  which  he  was  imprisoned,  so  that  he  was 
unable  to  return,  and  the  ship  sailed  without  him ; 
it  was  held,  that  the  leaving  him  behind  was  an 
offence  within  the  intent  of  the  Act  of  1825.^ 

119.  Neither  of  the  offences,  enumerated  and  con- 
templated by  this  Act,  is  committed,  if  the  master 
acted  from  a  justifiable  cause.  That  is  to  say,  there 
is  no  violation  of  the  law,  if  the  forcing  ashore,  or 
leaving  behind,  or  refusing  to  bring  home,  any  offi- 
cer or  mariner,  proceeded  from  a  justifiable  cause. 
Justifiable  cause,  in  the  sense  of  the  Act,  does  not 
mean  such  a  cause  as  in  the  mere  maritime  law 
might  authorize  a  discharge ;  but  such  a  cause  as 
the  known  policy  of  the  American  laws  on  this  sub- 
ject contemplates,  as  a  case  of  moral  necessity,  for 
the  safety  of  the  ship  and  crew,  or  the  due  per- 
formance of  the  voyage.^ 

•  U.  S.  V.  Netcher,  1  Story's  R.  307. 

«  U.  S.  V.  Coffin,  1  Sum.  394.     "  I  think,"  observed  Judge 


OF     THE    DISCHARGE     OF    SEAMEN.         141 

120.  While,  therefore,  a  justifiable  cause  for  the 
commission  of  either  of  the  acts  enumerated  by  the 
statute,  exonerates  the  master,  and  is  a  sufficient 
defence  to  an  indictment  therefor,  the  absence  of 
such  justifiable  cause  is  not  alone  sufficient,  on  the 
other  hand,  to  convict  him.  Want  of  justifiable 
cause  and  malice  must  concur  to  constitute  either  of 
the  offences  contemplated  by  the  Act.  Maliciously, 
in  the  sense  of  the  statute,  is  not  limited  to  acts  done 
from  hatred,  revenge,  or  passion ;  but  it  includes  all 
acts  wantonly  done,  or  wilfully  done — that  is,  against 
what  any  man  of  reasonable  knowledge  and  ability 
must  know  to  be  contrary  to  his  duty.  The  law 
presumes  every  man  to  know  what  in  point  of  duty 
is  required  of  him  in  his  station.  However,  if  in 
any  particular  case,  the  circumstances  are  such  that 
a  master  of  reasonable  judgment,  acting  bona  fuh, 
and  not  from  passionate  excitement,  might  fairly 
deem  it  his  duty  to  discharge  a  seaman,  or  leave 
him  behind ;  he  will  not  be  guilty  of  the  offence  in- 
tended by  the  Act.' 

Story,  in  this  case,  that  "  the  right"  (of  discharge)  "  arises  only 
under  extraordinary  emergencies  and  in  extreme  cases,  when  other- 
wise the  safety  of  the  officers  or  crew,  or  the  due  performance  of 
the  voyage,  or  the  regular  enforcement  of  the  ship's  discipline, 
would  be  put  in  jeopardy.  The  mere  convenience  of  the  master 
woul<l  not  justify  a  tlischargo,  much  less  such  offences  as  could  be 
ordinarily  suppressed  by  the  common  jiuiiishuK'nts  administered 
in  the  sea-service." 

>  Tbid.  United  States  v.  lluggles,  5  Mason,  192  ;  Phillips's  case, 
1  Moody,  Crown  Cas.  264,  273.  "  IJy  'maliciously,'  in  the 
intendment  of  tlie  statute,"  said  Judge  Story,  in  T.  S.  v.  llug- 
gles, xupni,  "  is  not  merely  meant  a  wicked,  malignant,  and 
revengeful  act,  such  as  in  cases  of  murder,  constitutes  malice,  and 


142  THE     LAW    OF    SHIPPING. 

121.  The  master  lias  a  right,  under  the  general 
maritime  law,  to  discharge  a  seaman  in  a  foreign 
port,  lint  it  must  be  done  for  a  sufficient  cause.  It 
must  be  some  offence  of  a  high  and  aggravated  cha- 
racter, or  long  and  habitual  disregard  of  duty,  or 
other  continued  misconduct,  unrepented  of  and  un- 
changed. But  the  laws  of  the  United  States,  from 
motives  of  an  enlarged  policy,  have  circumscribed 
the  authority  of  the  master  in  cases  of  discharge 
within  much  more  narrow  bounds.  His  right,  under 
these  laws,  can  result  only  from  what  may  be  deemed 
a  moral  necessity,  analogous  to  the  cases  put  in  the 
Act  of  1803.^  Certainly,  he  would  be  justified  in 
discharging  a  seaman,  if  his  presence  on  board  would 
jeopard  the  safety  of  the  officers,  or  crew,  or  the  due 
performance  of  the  voyage,  or  the  regular  enforce- 
ment of  the  ship's  discipline.^  And  whenever  the 
misconduct  has  been  such  as  to  render  the  dis- 
charge of  the  seaman  imperatively  necessary  for  the 
safety  of  the  ship,  and  the  due  preservation  of  disci- 

which  flows  from  a  heart  regardless  of  social  duty,  and  fatally  bent 
on  mischief.  But  if  the  act  be  wantonly  done,  that  is,  with 
a  wilful  disregard  of  right  or  duty,  it  is,  in  the  sense  of  the  statute, 
malicious.  It  must  be  a  wilful  act,  done  contrary  to  a  man's 
own  convictions  of  duty.  If,  therefore,  the  defendant  did  the  act 
from  good  motives,  and  under  a  mistaken  sense  of  duty,  and  not 
from  a  spirit  of  hatred,  or  with  an  intention  to  oppress,  then  he 
ought  to  be  acquitted,  notwithstanding  the  want  of  justifiable  cause. 
But  if  he  did  the  act  contrary  to  his  own  sense  of  duty,  as  a  mere 
exercise  of  power,  without  any  sense  of  its  being  right,  then  it 
was  '  maliciously'  done  in  the  sense  of  the  statute." 

»  U.  S.  V.  Coffin,  1  Sum.  R.  394.  Act  of  1803,  ch.  G2,  sees. 
1,3. 

'  Ibid. 


OF   THE    DISCHARGE    OF    SEAMEN".  143 

pline,   the   discharge   operates   a  forfeiture  of   the 
wages.  ^ 

122.  The  cases  stated  in  which  a  master  is 
permitted  to  discharge  a  seaman,  are,  when  he  is 
incorrigibly  disobedient,  and  will  not  submit  to  do 
his  duty,  or  if  he  is  mutinous  and  rebellious,  and 
persists  in  such  conduct,  or  is  guilty  of  gross  mis- 
conduct, or  dishonesty,  as  embezzlement  or  theft,  or 
if  he  is  an  habitual  drunkard,  and  a  stirrer  up  of 
quarrels  and  broils,  to  the  destruction  of  the  disci- 
pline of  the  crew ;  or,  by  his  own  fault,  renders  him- 
self incapable  of  performing  his  duty.^     In  short, 

>  The  Blake,  1  W.  Rob.  R.  75  j  Smith  v.  Treat,  Davies'  R. 
2GG.  It  was  held  in  this  latter  case,  that  the  arrest  and  imprison- 
ment of  a  seaman  in  a  foreign  port,  and  sending  him  home  by  the 
public  authority  as  a  prisoner  charged  with  an  indictable  offence, 
does  not  necessarily  constitute  a  bar  to  a  claim  for  wages  for  the 
voyage.  Such  proceedings  do  not  preclude  the  Court  from  inquir- 
ing into  the  merits  of  the  case,  and  making  such  a  decree  as  the 
justice  of  the  case  requires.  The  simple  fact  that  a  seaman  is 
arrested  and  sent  home  as  a  prisoner,  docs  not  prove  him  guilty  of 
the  offence  with  which  he  is  charged.  It  may  turn  out  upon  in- 
vestigation that  there  was  no  offence  committed,  no  imperative 
necessity  for  his  arrest,  either  for  the  safety  of  the  ship,  or  the 
preservation  of  discipline  ;  and  consequently  no  forfeiture  of  wages. 

2  Hutchinson  v.  Coombs,  Ware's  R.  G5 ;  Thorne  v.  White,  1 
Peters'  Ad.  R.  175 ;  Relf  v.  The  Maria,  Ibid.  186 ;  Rlack  v.  The 
Louisiana,  2  Ibid.  2G2;  Jjaws  of  Oleron,  art.  G-13  ;  Cleirac,  51, 
52  ;  Con.sulat  do  la  Mer,  ch.  2G7 ;  Laws  of  the  Ilanse  Towns,  29, 
45;  Laws  of  Wisbury,  IS,  edit,  of  Cleirac  j  Smith  v.  Treat,  Davies 
R.  2GG.  Judge  Ware,  in  this  case,  delivered  a  very  able  and 
interesting  opinion.  "Generally  speaking,"  he  observed,  "the 
causes  which  justify  the  master  in  discharging  a  seaman  before  the 
termination  of  the  voyage,  and  especially  in  a  foreign  port,  arc 
such  as  amount  to  a  di.squaliiicatiou,  and  show  him  to  be  unfit  for 


144  THE    LATV    OF    SHIPPING. 

when  his  conduct  is  of  such  a  character  as  shows 
that  he  is  an  unsafe  or  unfit  man  to  have  on  board, 
he  may  be  discharged.  Ordinaril}^,  however,  the 
hiw  will  not  justify  the  master  in  dismissing  a  sea- 
man for  a  single  oflence,  unless  it  be  of  a  high  and 
aggravated  character,  implying  a  deep  degree  of 
moral  turpitude,  or  a  dangerous  and  ungovernable 
temper  or  disposition.  It  looks  on  occasional  offences 
and  outbreaks  of  passion,  not  so  frequent  as  to  be- 
come habits,  with  indulgence,  and  by  maritime 
Courts  it  is  administered  with  levity  and  a  due 
regard  to  the  character  and  habits  of  the  subjects  to 
whom  it  applies.' 


the  service  he  has  engaged  for,  or  unfit  to  be  trusted  in  the  vessel. 
They  are,  mutinous  and  rebellious  conduct,  persevered  in,  gross 
dishonesty,  or  embezzlement,  or  theft,  or  habitual  drunkenness,  or 
^vhcre  the  seaman  is  habitually  a  stirrer  up  of  quarrels,  to  the 
destruction  of  the  vessel  and  the  discipline  of  the  crew."  See 
also  Bee's  R.  148,  184;  The  Lady  Campbell,  2  Ilagg.  Ad.  R.  5; 
The  Vibilia,  Ibid.  228 ;  Townsend  v.  Orne,  4  Mason,  541 ;  The 
Ship  Mentor,  Ibid.  84 ;  Buck  v.  Lane,  12  S.  &  R.  266 ;  Atkyns 
V.  Burrows,  1  Peters'  Adm.  244 ;  The  Nimrod,  Ware's  R.  9. 

'  Smith  v.  Treat,  supra.  "  In  the  American  Courts,  the  right 
of  the  master  to  discharge  a  seaman  for  misbehavior,  has  been 
often  recognised.  But  the  right  is  (jualitied  by  many  limitations. 
He  has  not  a  right  to  discharge  him  for  trifling,  or  venial  oflFences, 
or  in  the  mere  exercise  of  his  own  discretion.  There  must  be  mis- 
behavior of  a  gross  and  aggravated  nature  to  justify  a  discharge; 
otherwise  the  master  and  owners  will  be  liable  in  damages.  Judge 
Peters  has  held,  that  if  a  seaman  is  incorrigibly  mutinous  and  dis- 
obedient, persisting  in  his  misconduct;  if  he  is  guilty  of  gross  crimes 
and  dishonesty ;  if  he  is  an  habitual  drunkard,  and  purloins  the 
ship's  stores;  in  these  and  the  like  cases,  he  may  be  discharged. 
But  if  his  offence  is  but  temporary  and  fugacious ;  if  he  is  repent- 
ant and  willing  to  return  to  duty;  then  the  master  has  no  right 
to  dismi.ss  him."     Story's  Abbott,  p.  263. 


OF    THE    DISCHARGE    OF     SEAMEN.         145 

123.  It  is  not  the  simple  averment  by  the  master 
that  the  seaman  was  a  dangerous  man,  that  will  in- 
duce a  Court  of  Admiralty  to  sanction  his  discharge. 
When  he  assigns  this,  in  a  Court  of  justice,  as  a  rea- 
son for  setting  aside  the  obligation  of  a  contract,  it 
is  the  duty  of  the  Court  to  look  into  the  grounds  of 
his  apprehension.  It  is  not  the  vain  fear,  liominis 
cujusdam  meticidosi,  that  will  justify  the  master  in 
dissolving  the  contract.  It  must  be  such  fear  as 
may  be  supposed  to  affect  the  mind  of  a  man  of  or- 
dinary firmness. 1  The  law  is  accommodated  to  the 
character  of  the  sailor,  and  ordinarily,  even  in  ag- 
gravated cases,  if  he  repents  and  returns  to  his  duty, 
the  master  is  bound  to  receive  him  on  board  again.^ 
"Even  in  cases  of  aggravated  offences,"  says  Mr. 
Curtis,^  "  or  of  a  continued  course  of  conduct  which 
would  justify  the  discharge  of  a  seaman,  if  he  re- 
pents and  offers  amends,  the  principle  which  is 
always  operative  in  his  favor  against  all  kinds  of 
forfeiture,  with  very  rare  exceptions,  intervenes  to 
restore  him  to  his  rights,  and  he  is  ordinarily  en- 
titled to  be  received  again  on  board.  To  deprive  a 
mariner  of  the  benefit  of  this  rule,  it  should  appear 
that  the  misconduct  amounts  to  a  radical  (Usqualiji- 
caiion,  as  dislionesty  and  haljitual  drunkenness  in  a 
steward ;  or  that  the  party  is  really  dangerous  to 
the  peace  and  safety  of  the  ship." 

124.  It  may  be  superfluous  to  add,  that  if  the 
master  improperly  discharges  a  seaman,  he  and  the 

»  The  Nimrorl,  Ware's  R.  9.  "  Ibid. 

'  McrcbiiDt  Seamen,  p.  150. 

10 


146  THE    LAAV    OF    SHIPPING. 

owner  become  responsible  for  damages.^  The  mea- 
sure of  damages  in  such  a  case  is  actual  compensa- 
tion ibr  the  injury,  according  to  the  circumstances. 
The  amount  of  damages  is  neither  to  be  determined 
by  the  amount  of  wages  which  would  be  due,  com- 
puted to  the  successful  termination  of  the  voyage, 
nor  computed  to  the  time  of  his  own  return  to  his 
country,  but  should  be  an  indemnity  for  the  actual 
injury  sustained  by  the  breach  of  the  contract.* 
Judge  Ware  subscribed  to  this  doctrine,  in  the  case 
of  Hutchinson  v.  Coombs,  and  decreed  wages  for  the 

1  Johnson  v.  Dalton,  1  Cowen's  R.  543 ;  Atkyns  v.  Burrows,  1 
Peters'  Adm.  R.  244 ;  Halle  v.  Heightman,  2  East's  R.  145 ; 
Hutchinson  v.  Coombs,  Ware's  R.  65. 

"  Emerson  v.  Howland,  1  Mason's  R.  45.  The  reader  will  find 
the  authorities  upon  the  point  discussed  in  the  test,  collected  in 
Flanders'  Maritime  Law,  p.  377.  It  is  there  laid  down,  "  that  if  a 
seaman  is  wrongfully  discharged  during  a  voyage,  he  is  entitled 
to  a  compensation  for  the  injury,  according  to  the  circumstances 
of  his  own  particular  case.  This  is  ordinarily  measured  by  the 
loss  of  time  and  the  expenses  of  his  return  to  the  country  where 
he  was  originally  shipped.  In  some  cases  wages  have  been  allowed 
up  to  the  prosperous  termination  of  the  voyage,  and  in  others  up 
to  the  time  of  the  seaman's  return  to  the  country  Avhere  he  was 
originally  shipped,  without  reference  to  the  termination  of  the 
voyage.  If  the  seaman  has  obtained  employment  in  the  mean 
time,  his  earnings  are  deducted,  not  from  his  wages,  but  from  the 
expenses  of  his  return.  If,  in  addition  to  the  wrongful  discharge, 
the  master  detains  the  seaman's  clothing,  he  may  recover  the  value 
of  it  in  the  common  libel  for  his  wages."  But  see  contra,  Abbott 
on  Shipp.  733  ;  Tlie  Elizabeth,  2  Dods.  Adm.  R.  403.  "  Nothing," 
said  Lord  Stowell  in  this  case,  "  can  be  more  generally  or  more 
peremptorily  laid  down,  than  that  a  master  discharging  a  seaman 
wrongfully  is  answerable  for  the  whole  wages  of  the  voyage  of  that 
ship."  The  rule  of  American  Law  is  clearly  the  opposite  of  this, 
and  stands  upon  grounds  of  substantial  equity. 


OF    THE    MATE    AND    IXFERIOR    OFFICERS.    147 

whole  voyage  as  the  measure  of  damage  in  that 
case.  He  also  held,  that  the  intermediate  earnings 
of  the  seaman  were  to  be  deducted,  not  from  his 
wages,  but  from  the  expenses  of  his  return. 

125.  It  will  be  seen,  by  reference  to  the  Act  of 
1803,  that  the  consul's  certificate  that  a  seaman  was 
discharged  w^th  his  approbation,  will  be  a  sufficient 
defence  to  an  action  for  the  penalty  of  the  master's 
bond  to  the  government,  but  it  is  not  a  sufficient 
defence  to  an  action  by  the  seaman  for  damages. 
The  Court  will  go  behind  the  certificate  and  inquire 
into  the  cause  of  the  discharge,  and  award  damages, 
if  the  circumstances  of  the  particular  case  render  it 
proper.' 

II.  OF  THE  MATE  AND  INFERIOR  OFFICERS. 

12G.  The  authority  of  the  master  extends  over 
the  mate  and  the  other  officers  of  the  ship,  and  he 
may  discharge  them  abroad  for  adequate  cause,  as 
well  as  the  common  mariners.  But  it  can  only  be 
done  in  a  clear  case,  and  on  good  grounds.  Abso- 
lute necessity  almost  is  required  to  justify  the  mea- 
sure. At  first  blush  it  may  seem  that  officers  do 
not  present  so  strong  a  title  to  the  indulgence  and 
favorable  attention  of  a  Court  of  Admiralty  as  com- 
mon mariners;  who  are,  from  their  ignorance  and 
helpless  state,  placed  in  a  peculiar  mauuer  under  its 
tender  protection.  IJiit  there  are  other  grounds  on 
which  officers  are  justly  objects  of  equal  attention, 
inasmuch  as  an  injury  done  to  their  character  is  of 


'  Hutchinson  v.  Coombs,  Ware's  R.  65. 


14S  THE    LAAV    OF    SniPTING. 

wider  extent,  and  attended  with  consequences  of 
a  more  serious  nature.  Mariners,  if  distressed  in 
one  service,  may  easily  obtain  another,  and  a  sailor 
may  remain  a  sailor  to  the  end  of  his  days,  as  it  is 
not  usual  to  be  minute  in  the  inquiry  made  into  their 
characters.  But  if  an  officer  is  discharged  for  insuf- 
ficiency, it  may  not  be  easy  for  him  to  procure 
another  situation  ;  and  he  is  in  danger  of  losing,  not 
only  his  present  footing,  but  more  particularly  those 
prospects  of  promotion,  which  depend  in  a  great  mea- 
sure on  the  character  that  has  travelled  along  with 
him  during  his  former  employs,  and  has  been  the 
most  valuable  fruit  of  a  life  of  service.  These  con- 
siderations are  sufficient  to  place  officers  also  under 
the  particular  protection  of  the  Court.  It  must  not 
be  understood,  however,  that  such  a  blind  indul- 
gence will  be  shown  as  to  overrule  the  real  justice 
of  the  case.  It  is  only  such  an  indulgence  as  the 
equitable  considerations  of  public  utility  require, 
which  can  seldom  in  such  cases,  any  more  than  in 
others,  be  separated  from  particular  justice.* 

*  Galloway  v.  Morris,  3  Yates,  K.  445 ;  The  Ship  Exeter,  2 
Rob.  Ad.  R.  261 ;  Atkyns  v.  Burrows,  1  Peters'  Ad.  R.  246. 
"  When  I  first  came  into  this  Court,"  observed  Judge  Peters,  in 
this  case,  "  I  found  it  taken  for  granted  that  the  captain  had  a 
legal  right  to  displace  the  mate  for  just  cause.  I  have  seen  re- 
peated instances  where  the  exercise  of  this  power  was  necessary 
for  the  safety  of  the  ship ;  and  I  have  examined  into  many  cases 
wherein  it  had  been  executed  from  arbitrary,  capricious,  and  im- 
proper motives.  It  is  established  by  the  maritime  laws,  and  so  it 
ought  to  be,  that  the  captain  must  be  supreme  in  the  ship.  His 
lawful  orders  must  be  obeyed.  But  when  a  contract  is  in  ques- 
tion, the  law,  by  its  proper  Courts,  will  see  that  it  is  not  vacated 
for  any  other  than  legal,  reasonable,  and  necessary  causes.  The 
Courts  will  control  and  examine  the  powers  and  conduct  of  the 


OF    THE    MATE    AND    INFERIOR    OFFICERS.    149 

127.  It  Avas  Scaid  by  Lord  Stowell  in  the  case  of 
The  Exeter,  which  is  cited  in  the  margin,  that  in  a 
matter  so  tender  as  the  discharge  of  an  officer,  the 
master  ought  to  call  the  attention  of  the  passengers 
and  crew  to  the  circumstances  attending  it,  that  the 
propriety  of  the  act  may  he  properly  warranted  and 

master.  He  is  authorized  to  give  all  commands  for  the  naviga- 
ting, government,  and  safety  of  the  ship ;  but  he  has  no  authority 
to  nullify  a  contract  at  his  will,  or  for  light  and  trifling  causes.  A 
contract  is  a  solemn  engagement,  not  to  be  vacated  without  the 
consent  of  all  parties,  or  on  considerations  on  which  the  law  must 
decide  through  the  tribunals  established  to  make  such  decisions." 
The  mate  in  this  case  had  not  been  discharged  abroad,  but  dis- 
placed and  turned  before  the  mast,  on  the  ground  of  gross  negli- 
gence. The  Court  held  that  he  had  been  illegally  displaced,  that 
he  was  entitled  to  wages  agreeably  to  his  original  contract  as  mate, 
and  that  if  any  loss  had  accrued,  on  account  of  his  being  unlaw- 
fully displaced,  the  master  must  answer.  Being  displaced  for  in- 
sufficient cause,  the  mate  could  maintain  an  action  for  the  breach 
of  his  contract,  and  recover  damages  according  to  the  circum- 
stances. 

Judge  Peters,  in  his  opinion,  which  deserves  attention,  assigned 
the  causes  for  which  a  mate  may  be  degraded.  "  He  may  forfeit 
his  right  to  command  and  wages,"  he  says,  "by  fraudulent,  un- 
faithful, and  illegal  practices ;  by  gross  and  repeated  negligence, 
or  flagrant,  wilful,  and  unjustifiable  disobedience;  by  incapacity, 
brought  on  him  by  his  own  fault,  to  perform  his  duty,  or  palpable 
want  of  skill  in  his  profession."  The  rules  here  laid  down  were 
acceded  to  by  Judge  Washington,  in  the  case  of  Thompson  v. 
Bu.sch,  4  Wash.  C.  (!.  R.  3:^S.  The  relative  duties  of  the  inferior 
officers  and  seamen  to  the  master,  and  of  the  master  to  them,  arc 
defined  in  a  libirnl  and  ('((uitable  spirit,  and  with  great  precision 
in  that  ca.sc.  If  Judge  Wasliington  did  not  possess  those  accumu- 
lated stores  of  legal  and  various  learning,  which  were  the  orna- 
ment and  distinction  of  some  of  his  contemporaries,  he  anii)ly 
atoned  for  any  want  of  tlicm  by  the  justice  of  liis  views,  the  patient 
industry  of  his  habits,  and  the  accuracy  and  impartiality  of  his 
judgment. 


150  THE     LATV    OF     RlITrriNG. 

vouched  hy  as  much  evidence  as  possible.  When 
a  mate  or  other  inferior  officer  is  disrated,  as  he 
may  be  for  incapacity,  and  other  causes  stated  by 
Jud"-e  Teters  in  the  case  of  Atkyns  v.  Burrows, 
which  are  cited  at  length  in  the  marginal  note,  he 
does  not  thereby  become  a  quasi  passenger,  and 
therefore  exempt  from  the  performance  of  other 
duty.  He  cannot  by  his  own  misrepresentation  as 
to  his  qualifications  deprive  the  ship  of  the  services 
of  an  important  officer,  and  by  making  her  short- 
handed,  increase  the  hazard  and  add  to  the  labors  of 
all  others,  w^hile  he  eats  the  bread  of  idleness,  and  is 
only  an  incumbrance  on  the  sliip.^ 

128.  The  mate  is  a  respectable  officer  in  the  ship, 
and  generally  chosen  with  the  consent  of  the  owners. 
He  is  under  the  orders  of  the  master  in  his  ordinary 
duty;  but  his  contract  is  not  subject  to  arbitrary 
control.  If  displaced,  it  must  be  for  causes  evident, 
strong  and  legally  important.'  There  is  an  implied 
warranty  in  the  mariner's  contract,  that  the  party  is 
competent  in  knowledge  and  bodily  health  to  the 

»  Morris  v.  Cornell,  6  Law  Rep.  304.  "I  have  no  doubt,"  ob- 
served Judge  Sprague,  "that  Morris  (the  libellant),  when  he 
shipped,  thought  he  should  be  able  to  perform  the  duties  of  second 
mate.  I  acfiuit  him  of  all  designed  deception.  Still  it  was  obli- 
gatory on  him  to  know  his  qualiGcations,  and  if  in  fact  found  to 
be  unfit  for  a  portion  of  his  duties,  he  was  still  bound  to  have  per- 
formed others.  In  refusing  all  duty,  therefore,  he  was  wrong,  and 
set  an  example  of  insubordination  and  disobedience,  which  the 
master  had  a  right  to  punish.  He  had  a  right  to  coerce  him  to 
submission." 

"  Atkyns  v.  Burrows,  svpra.  The  Ship  Orozimbo,  1  Peters' 
Ad.  R.  250 ;  Wood  v.  The  Nimrod,  Gilpin's  R.  83. 


OF    THE    MATE    AND    INFERIOR    OFFICERS.    151 

station  for  which  he  contracts.  If  he  contracts  for 
a  particular  service  or  duty  on  board  a  vessel  he 
engages  both  for  fidelity  in  the  performance  of  that 
duty,  and  for  that  capacity  and  those  qualities  which 
will  enable  him  to  perform  the  service  in  a  satisfac- 
tory manner.  If  the  master  finds,  upon  trial,  that 
there  is  on  the  part  of  the  mate  either  a  want  of 
fidelity  or  a  want  of  capacity  which  disqualifies  for 
the  service,  he  will  be  justified  in  putting  him  upon 
a  different  duty.  This,  however,  cannot  be  done 
capriciously.  There  must  be  reasonable  and  legal 
cause.  When  such  cause  exists,  the  master  will  be 
justified,  not  in  refusing  altogether  to  pay  him  wages, 
but  in  making  from  them  a  reasonable  deduction.^ 

129.  When,  however,  the  master  is  acquainted 
with  the  capacity  and  state  of  health  of  the  party, 
he  makes  the  engagement  under  a  knowledge  of  the 
true  state  of  his  nautical  abilities  and  deficiencies. 
There  is  no  fraud  or  imposition  practised.  The 
master  has  contracted  for  imperfect  service,  and  he 
must  be  content  with  it.  True,  if  the  necessities  of 
the  ship  demand  that  the  party  should  be  displaced, 
the  master  is  authorized  to  displace  him.  The  exi- 
gency of  the  case  is  his  justification.  But  he  would 
have  no  right,  I  apprehend,  either  to  deny  him  the 

'  Wor.(l  V.  TL(!  Nimrod,  Gilpin's  K.  S.3;  Sherwood  v.  M'Intosh, 
Ware's  K.  101);  (Jurtis's  .Mereliaut  Seainon,  20;  The  Richmond, 
2  Peters'  Ad.  II.  2 ('>.*] ;  Forbes  v.  I'arsons,  Crabbe's  II.  2S;{.  It 
was  hehl  liy  Judfre  Hopkirison,  in  this  case,  that  when  a  party  ships 
for  a  particulrir  cniploynicnt,  and  either  will  not  or  cannot  perform 
its  duties,  if  his  deficiencies  arise  from  wilfulness  or  o])stina(;y,  ho 
is  a  fit  object  for  punishment  ;  if  from  incapacity,  he  is  entitled 
to  no  particular  favor  of  the  Court. 


152  THE    LAAV    OF    SIIIPriNG. 

stipulated  wages,  or  to  put  liini  upon  other  service. 
It  would  be  violative  of  the  most  obvious  principles 
of  justice  and  fair  dealing  to  permit  a  master  to  con- 
tract with  a  seaman  for  a  particular  service,  knowing 
his  incapacity  to  perform  it,  and  then,  having  the 
man  in  his  power,  to  put  him  to  the  performance  of 
other  duties,  for  which  he  did  not  contract,  and  for 
which,  perhaps,  originally,  he  would  not  have  con- 
tracted. Such  a  doctrine  would  enable  a  master, 
under  pretence  of  employing  them  in  one  service, 
but  with  the  intention  of  employing  them  upon  an- 
other, to  inveigle  men  on  board  his  ship,  to  get  in- 
directly service  which  he  could  not  perhaps  obtain 
directly.' 

130.  If  one  ships  as  an  officer  or  mariner,  and  re- 
presents himself  as  an  able-bodied  seaman,  and  it 
turns  out  that  he  was  affected  with  a  fatal  disease, 
of  Avliich  he  dies  during  the  voyage,  his  administrator 
has  no  claim  for  wages.  It  was  a  fraud  on  his  part 
to  have  represented  himself  as  able-bodied,  and  there- 
fore no  foundation  for  a  claim  of  wages  is  laid.^ 
Temporary  appointments  made  by  the  master  on  an 
emergency,  such  as  the  appointment  of  a  common 
sailor  to  the  position  of  mate,  stands  on  a  very  dif- 
ferent footing  from  that  of  a  mate  originally  shipping 
as  such ;  making  his  contract  for  the  office,  and  for 
the  wages  belonging  to  it.  Such  appointments  are 
held  at  the  master's  pleasure.  They  are  mere  ex- 
periments, of  the  success  of  which  he  is  to  judge.^ 
If  the  seaman,  placed  in  the  position  of  mate,  per- 

'  The  Ship  Orozimbo,  1  Peters'  Ad.  R.  250. 

*  The  Kichmond,  supra.  '  The  Niinrod,  Gilpin's  R.  83. 


OF    THE    MATE    AND    INFERIOR    OFFICERS.    153 

forms  the  duties  attached  to  that  office,  he  will  be 
entitled  to  the  wages  of  a  mate.  K  he  fails  to  per- 
form them,  and  is  remitted  to  his  original  post,  he 
cannot,  it  seems,  recover  mate's  wages  during  the 
time  he  was  on  trial. ^ 

131.  When  the  master  dismisses  or  disrates  the 
mate  or  other  officers,  or  the  mariners,  and  an  action 
is  brought  against  the  owners  for  the  stipulated 
wages  of  such  dismissed  or  disrated  officer  or  mari- 
ner, the  master  is  not  a  competent  witness  without 
a  release  from  the  owners.^  The  reason  assigned  for 
his  exclusion  by  Judge  Peters,  in  the  case  of  Malone 
V.  The  Brig  Mary,^  was,  that  the  master  is  interested 
in  the  result,  though  not  immediately;  that  if  a 
decree  passes  against  the  seaman  in  a  procedure  in 
rem,  or  against  the  owner,  it  may  be  given  in  evi- 
dence to  repel  a  suit  against  the  master.  But  in 
Johnson  v.  Huckins,^  where  the  competency  of  the 
master  as  a  Avitness  against  a  mariner,  in  a  suit  for 
wages,  brought  by  him  against  the  ship  or  owners, 
came  in  question,  he  was  admitted  de  hene  esse.  The 
point,  however,  was  not  definitively  settled.  But 
Judge  Sprague  denied  the  reason  for  exclusion  given 
by  Judge  Peters,  as  above  stated,  that  a  decree 
against  the  seaman  in  a  suit  against  the  owner, 
could  be  given  in  evidence  to  repel  a  suit  against 
the  master. 


'  The  Nimrofl,  Oilpin'fl  R.  83. 

"  The  Ship  Kxcti-r,  2  Kob.  A<1.  II.  201  j  Galloway  v.  Morris,  3 
Yates'  11.  44.')  J  Malone  v.  The  IJrig  Mary,  1  Peters'  Ad.  It.  139. 
>  1  Peters'  Ad.  11.  130,  supra.  «  G  Law  Rep.  311. 


154  THE    LAW    OF    siripriNG. 

132.  Upon  the  death  or  sickness  of  the  master,  or 
from  any  otlier  canse  that  renders  him  incapable  of 
having  the  command,  the  mate  succeeds  to  his  place 
virtute  officii,  by  mere  operation  of  law.  The  law 
throws  this  duty  and  obligation  upon  him ;  he  acts 
in  the  stead  of  the  master,  in  all  cases  where  the  lat- 
ter is  dead  or  absent,  or  incapable,  as  from  insanity.' 
It  is  the  doctrine  of  the  cases,  however,  that  a  mate 
succeeding  to  the  command  of  the  ship,  does  not  in 
consequence  lose  his  character  as  mate.  He  is  ac- 
countable only  for  his  own  transactions.  If  put  on 
shore  from  sickness,  for  the  convenience  of  the  ship, 
his  expenses  for  medicine,  advice,  attendance,  and 
board,  are  to  be  borne  by  the  ship-owner.     Acting 


'The  Brig  George,  1  Sum.  R.  151;  Orne  v.  Townsend,  4 
Mason's  11.  541;  Pray  v.  Stinson,  21  Maine,  402;  2  Sum.  584; 
Copeland  v.  New  England  Marine  Ins.  Co.,  2  Met.  11.  432;  The 
Favorite,  2  Rob.  R.  232 ;  Read  v.  Chapman,  2  Strange  R.  937. 
It  is  assumed  by  these  cases,  that  the  mate,  in  succeeding  to  the 
office  of  master,  does  not  thereby  cease  to  be  mate ;  that  he  is  not 
master,  but  quasi  master,  jji-o  hac  vice.  That  he  succeeds  as 
Jiasres  necessarius  to  the  employment  of  the  master,  in  a  case  of 
necessity.  We  have  ventured  elsewhere  to  express  the  opinion, 
that  while  the  mate,  by  appointment  of  law,  is  clothed  with  all 
the  powers  and  responsibilities  of  master,  is  acting  in  his  place 
and  stead,  he  is  pro  tempore  master,  subject  to  the  liabilities,  and 
entitled  to  the  privileges,  that  belong  to  that  position.  In  other 
words,  that  he  is  not  mate  for  one  purpose,  and  quasi  master  for 
another.  The  office  being  imposed  upon  him  by  the  law,  he  is  not 
burdened  with  the  obligations  of  his  predecessor;  that  is  to  say, 
his  duties  and  obligations  have  their  inception  from  the  moment  he 
assumes  the  command.  He  is  not  liable,  for  example,  for  the  sea- 
men's wages,  as  a  substituted  master  is.  The  law  docs  not  impose 
upon  him  personal  liability  for  contracts  made  by  another,  but 
holds  him  accountable  for  the  performance  of  every  duty  con- 
nected with  the  post,  after  he  has  assumed  it. 


OF     THE     MATE    AND    INFERIOR    OFFICERS.    155 

as  master,  lie  is  entitled  to  an  additional  compensa- 
tion therefor,  which  he  may  recover  by  a  libel  in  the 
Admiralty.^ 

133.  Liable,  therefore,  as  the  mate  is,  to  have  the 
command  and  navigation  of  the  vessel  thrown  upon 
him,  the  law  imposes  it  as  a  duty  upon  the  owners, 
to  see  that  a  competent  person  fills  that  post.  He 
must  be  qualified  in  point  of  general  capacity  for  the 
office  of  master.  He  must  be  completely  skilled  in 
theoretic  and  practical  navigation,  and  general  sea- 
manship, for  the  duty  of  taking  command  in  case  of 
exigency.  And  it  has  been  held,  that  a  vessel  can- 
not be  deemed  seaworthy,  which  has  not  on  board 
some  person  capable  of  navigating  her,  besides  the 
master.^  This  doctrine,  however,  in  all  its  extent, 
has  not  commanded  universal  approval.  It  stands 
opposed  by  the  great  authority  of  Chancellor  Kent, 
as  well  as  the  opinions  of  Prof.  Greenleaf,  and  Sir  J. 
Campbell.  "  There  is  not  an  instance,"  says  Chan- 
cellor Kent,  "  in  all  the  infinite  and  vexatious  dis- 
cussions in  maritime  insurance  cases  in  the  Courts 
within  the  United  States,  in  which  such  a  stern  con- 
struction of  the  warranty  of  seaworthiness  has  been 
stated  or  suggested."  This  was  said,  however,  before 
the  decision  in  the  case  of  Copeland  v.  New  England 
Marine  Ins.  ('o.,  wliere  the  doctrine  of  Lord  Tenter- 


'  See  the  cases  cited,  mpra.  The  mate,  acting  as  master,  is  in- 
trusted with  the  government  and  management  of  the  ercw,  and  if 
ho  wrongfully  discharges  a  seaman,  the  owners  arc  liable.  Orno 
V.  Townscnd,  supra. 

»  Copeland  v.  New  England  Marine  Ins.  Co.,  2  Mctealf,  432  j 
Clifford  V.  Hunter,  .'I  Car.  i^  V.  IH. 


156  THE    LAW    OF    SHIPPING. 

dcii,  in  Cliflbrd  v.  Iliintor,  was  expressly  recognised. 
Prof.  Greenleaf,  and  Sir  J.  Campbell,  did  not  take 
sncli  strong  ground  against  the  rule  as  Chancellor 
Kent,  but  were  of  opinion,  that  while  there  is  not 
any  fixed  rule  of  law  which  makes  it  necessary  that 
the  mate  should  be  a  navigator,  capable  of  keeping 
the  ship's  reckoning,  in  all  cases,  be  the  voyage  what 
it  may,  it  was  nevertheless  a  question  of  fact  for  the 
jury  upon  the  circumstances  and  nature  of  the  par- 
ticular voyage/      This  limitation  of  the  doctrine, 
would  conserve  the  rights  of  all  parties.     "  To  place 
our  American  coasting,   and   West  India  voyages, 
within  the  discipline  of  Lord  Tenterden's  rule,"  says 
Chancellor  Kent,  in  the  opinion  above  referred  to, 
"  would  be  monstrous.     It  would  destroy  a  large  ma- 
jority of  all  the  policies  effected  on  that  trade  within 
the  last  thirty   years,  in  our  American   insurance 
offices,  and  which  is  generally  carried  on  in  small 
vessels,  such  as  sloops,  schooners,  brigs,  &c."     That 
such  consequences  might  follow  from  the  adoption  of 
Lord  Tenterden's  doctrine,  as  an  inflexible  rule,  ap- 
plicable to  all  voyages,  furnishes  a  strong  reason  in 
favor  of  the  limitation  of  it,  which  we  have  men- 
tioned. 

134.  Having  said  thus  much  of  the  powers  and 
duties  of  the  mate,  it  remains  to  observe,  that  one 
of  the  most  important  duties  devolved  upon  him,  is, 
that  he  should  exercise  great  vigilance  and  atten- 
tion for  the  preservation  of  the  cargo  against  attempts 


>  Vide  the  opinions  of  those  gentlemen  given  in  a  case  which 
arose  in  Canada  some  twelve  years  since,  in  the  Law  Hep.,  vol. 
1,  257. 


OF    SICK    AND    DISABLED    MARINERS.       157 

at  robbery  or  embezzlements.  He  is  not  by  any 
means  responsible  for  all  the  robberies  committed  on 
board  the  vessel.  He  is  bound  to  exercise  due  care, 
vigilance  and  caution ;  but  if,  notwithstanding,  em- 
bezzlement occurs  without  his  knowledge  or  partici- 
pation, he  is  not  responsible.^  Many  of  his  duties 
depend  on  usage,  which  furnishes  the  rule  of  law. 
By  usage,  it  belongs  to  the  mate  to  superintend  the 
receiving,  and  storing,  and  delivery  of  the  cargo. 
By  usage,  it  is  his  duty  to  keep  the  log-book,  wherein 
should  be  kept  a  minute  and  faithful  history  of  the 
voyage.  Responsible  to  the  master  for  the  propriety 
of  his  commands,  he  may  nevertheless  give  orders  to 
the  crew,  which  they  are  bound  to  obey.  They  are 
bound  to  obey,  because  otherwise  it  would  be  impos- 
sible for  him  to  superintend  the  sailing  of  the  vessel, 
which  is  his  peculiar  function,  acting,  however,  in 
that  capacity,  as  in  others,  as  the  representative 
and  aid  of  the  master.  But  the  mate  has  no  power, 
when  the  master  is  on  board,  to  inflict  punishment 
upon  a  sailor,  unless  in  a  case  of  absolute  necessity, 
to  enforce  the  performance  of  duty.^ 

III.  OF  THE  ACTS  FOR  THE  RELIEF  OF  SICK  AND  DISABLED 

MARINERS. 

135.  The  Acts  of  Congress  respecting  hospital 
money,  and  the  relief  of  sick  and  disabled  seamen, 

'  The  Duchess  of  Kent,  1  W.  Rob.  Ad.  R.  285. 

■  Curtis's  Merchant  Seamen,  94,  100  j  Jacobson's  Sea  Laws, 
Book  2,  eh.  2  ;  Thompson  v.  Ruseh,  4  Wawhington,  C  C.  R.  X^>^ ; 
Thomas  v.  Lane,  2  Sum.  R.  1 ;  U.  S.  v.  Taylor,  Id.  584;  IJutlcr 
V.  M'Lrllan,  Ware's  R.  210;  Wilson  v.  The  Bclvidcrc,  1  Peters' 
Ad.  R.  258. 


158  THE    LATT    OF    SniPPING. 

provide  suitable  means  for  the  relief  of  seamen  in 
the  home  ports ;  and  may  be  deemed  auxiliary  to 
the  maritime  law.  They  reach  cases  where  the  ma- 
ritime law  gives  no  relief;  and  are  far  different  in 
their  scope  and  operation  from  mere  cases  of  injuries 
and  sickness,  while  in  the  ship's  service,  which  are 
considered  in  another  chapter.  They  are  founded 
upon  the  great  national  policy  of  providing  means 
for  the  relief  of  seamen,  who  are  sick  and  disabled, 
b}'  withdrawing  a  small  fund,  from  time  to  time, 
from  their  maritime  earnings.  They  compel  seamen 
to  contribute  somewhat  in  the  day  of  their  prosperity 
towards  their  own  relief,  when  sickness  and  casual- 
ties overtake  and  crip])le  them.^ 

136.  The  Act  of  ITOS^  provides,  that  the  master, 
or  owner,  of  every  ship  or  vessel  of  the  United 
States,  arriving  from  a  foreign  port  into  any  port  of 
the  United  States,  shall  pay  to  the  Collector,  at  the 
rate  of  twenty  cents  per  month,  out  of  his  wages,  for 
every  seaman  employed  on  board  of  the  vessel,  since 
she  was  last  entered  at  any  port  of  the  United  States. 
Another  section  extends  the  like  provision  to  vessels 
engaged  in  the  coasting  trade.     By  the  same  Act, 

>  Reed  V.  Canfield,  1  Sum.  R.  200. 

2  Chap.  04.  By  the  Act  of  March  1,  1843,  the  provisions  and 
penalties  of  the  Act  of  16th  July,  1798,  entitled  an  Act  for  the 
relief  of  sick  and  disabled  seamen,  be  and  the  same  hereby  are 
extended  to  the  masters  and  owners,  and  seamen  of  registered  ves- 
sels, employed  in  carrying  on  the  coasting  trade;  and  the  Secre- 
tary of  the  Treasury  is  authorized  and  directed  to  issue  such 
instructions  to  the  Collectors  of  the  various  ports  as  shall  secure 
the  collection  of  hospital  money  from  said  seamen,  masters,  and 
owners. 


OF    SICK    AND    DISABLED    MARINERS.      159 

the  President  of  the  United  States  is  authorized,  out 
of  the  funds  so  raised,  to  provide  for  the  temporary 
rehef  and  maintenance  of  sick  and  disabled  seamen 
in  the  hospitals,  or  other  institutions,  now  established 
in  the  ports  of  the  United  States;  or,  in  ports  where 
no  such  institutions  exist,  in  such  other  manner  as 
he  shall  direct;  provided,  that  the  moneys  collected 
in  any  one  district,  shall  be  expended  within  the 
same.  And  the  surplus  is  reserved  as  a  fund  for  the 
erection  of  hospitals  for  the  accommodation  of  sick 
and  disabled  seamen.^ 

137.  It  seems  that  the  Acts  of  Congress,  for  "the 
relief  and  maintenance  of  sick  and  disabled  seamen," 
have  been  practically  construed  not  to  impose  upon 
ships  and  vessels  in  the  whale  and  other  fisheries, 
the  payment  of  hospital  money ;  and  it  is  most 
natural  to  presume,  under  such  circumstances,  that 
Congress  intended  the  benefit  for  those  who  were  to 
bear  the  burden.  Upon  this  point,  in  the  case  of 
Reed  v.  Canfield,  Judge  Story  declined  to  give  any 
opinion,  lie  said,  however,  that  it  certainly  was 
questionable,  whether  all  seamen  whatsoever  (and 
whalemen  and  fishermen  are  seamen  in  the  sense  of 
the  marine  law),  are  not  within  the  scope  of  the 
Acts ;  and  if  they  are,  no  executive  instructions  can 
lawfully  narrow  them. 

'  Ibid.  Ilccd  V.  Canfield,  sujyra. 


160 


CHAPTER  VI. 

OF  THE  MASTER'S  AUTHORITY  AS  TO  THE  EMPLOY- 
MENT  OF  THE  SHIP. 

138.  Having  treated  in  the  previous  chapters  of 
the  qualifications,  hiring,  discipline,  and  discharge 
of  seamen,  and  of  the  laws  for  their  protection,  secu- 
rity, and  relief,  we  are  naturally  led  in  the  progress 
of  our  subject  to  consider  the  powers  and  duties  of 
the  master  with  respect  to  the  ship  and  cargo,  and 
his  relation  to  the  ship-owner  and  the  freighter  of 
goods.  The  first  step  towards  this  end  will  be  to 
trace  the  power  of  the  master  as  to  the  employment 
of  the  ship. 

139.  It  is  the  established  law  of  commercial  states, 
that  the  owners  of  a  trading  ship  are  bound  to  the 
performance  of  every  lawful  contract  made  by  the 
master,  relative  to  the  usual  employment  of  the 
ship.  The  course  of  usual  employment  is  evidence 
of  authority  given  by  the  owners  to  the  master  to 
make  for  them  and  on  their  behalf,  a  contract  re- 
lating to  such  employment ;  and  therefore  a  contract 
so  made  by  him,  the  law  esteems  to  have  been  made 
by  them.    At  the  same  time,  it  must  be  understood, 


EMPLOTMEXT    OF     THE     SHIP.  161 

that  the  master  is  answerable  for  his  own  contract. 
The  law  gives  the  merchant  a  twofold  remedy 
agrainst  the  owner  and  the  master/ 

140.  Under  his  general  anthority,  the  master  has 
a  right  to  charter  the  vessel  in  a  foreign  port,  the 
owner  having  no  agent  there,  and  perhaps  in  a 
domestic  port,  if  at  a  distance  from  the  place  of  the 
owner's  residence,  and  the  means  of  communication 
are  difficult.^     It  is  well  settled,  however,  that  the 

'  Abbott  on  Shipping,  p.  157.  "It  is  true,"  says  this  author, 
"  that  the  master  also  is  answerable  for  his  own  contract ;  for  in 
favor  of  commerce  the  law  will  not  compel  the  merchant  to  seek 
after  the  owners  and  sue  them,  although  it  gives  him  the  power  to 
do  so;  but  leaves  him  a  twofold  remedy  against  the  one  or  the 
other.  But  in  pursuing  this  remedy,  care  must  be  taken  to  de- 
scribe the  defendant  according  to  his  real  character.  For  in  an 
action  at  law,  brought  against  a  person  as  master,  at  the  trial 
whereof  it  appeared  upon  the  proof  that  the  defendant  was  not 
master,  but  owner,  the  plaintiff  failed  in  his  suit.  This  rule  of  the 
law  of  England  agrees  with  the  law  of  other  commercial  nations. 
When  the  Romans  began  to  engage  in  commerce,  a  new  species  of 
action  under  a  particular  name  appears  to  have  been  introduced, 
to  ascertain  and  enforce  this  responsibility  of  the  owners  for  the 
acts  of  their  servants ;  and  by  the  Praetorian  edict,  the  owners,  or 
(to  render  the  Latin  word  more  nearly)  the  employers  of  the  ship, 
are  made  responsible  for  the  faults  of  the  mariners  and  master, 
and  for  the  contracts  also  of  the  master;  but  not  for  the  contracts 
of  the  mariners,  because  the  mariners  are  not  appointed  for  the 
purpose  of  conducting  the  business  of  the  ship,  but  only  of  labor- 
ing in  its  navigation  under  the  orders  of  the  master."  See  the 
Dig.  lib.  14,  tit.  1. 

a  Hurry  v.  Ifuny,  2  Wa.sh.  V.  C.  R.  145;  jVIurfreev.  Redding, 
1  Ilayw.  R.  270.  Sec  also  as  to  the  power  of  the  master  to  make 
contracts,  TJcrncn  v.  Cockran,  Rce's  Adni.  R.  200  ;  Emory  v.  Ilcr- 
Bcy,  4  (Jrccnlcaf,  R.  407;  Reynolds  v.  Toppan,  15  Mass.  .')70 ; 
Taggard  v.  Loring,  10  Id.  330;  IJoucherv.  Lawson,  Temp.  Hard. 

II 


1G2  THE    LA'W    OF     SIIIPriNG. 

master  has  no  power,  merely  in  his  character  of 
master,  without  a  superadded  agency,  to  bind  the 
owners  by  a  charter-party  under  his  hand  and  seal, 
so  as  to  subject  them  to  an  action  of  covenant  there- 
on.' Whatever  contracts  the  master  makes  in  the 
course  of  the  voyage,  within  the  scope  of  his  employ- 
ment, bind  the  owner  or  a  purchaser.  A  purchaser 
takes  the  ship  subject  to  all  incumbrances,  and  to 
all  lawful  contracts  which  the  master  had  before 
made  or  afterwards  made  respecting  the  employment 
of  the  ship.  Whatever  contracts  he  may  lawfully 
make  as  the  master  of  tlie  original  owner,  he  may 
still  lawfully  make  after  the  transfer,  until  he  has 
notice  of  it.^ 


85,194;  Kingv.  Lewis,  19  John.  235;  Pope  v.  Nickerson,  3 
Story's  R.  479. 

The  master  may  exempt  himself  from  personal  liability  by  a 
special  contract  to  that  effect,  or  he  may  be  exempt  if  the  credit 
was  specially  given  to  the  owners.  Iloskins  v.  Slay  ton.  Cases, 
Temp.  Hard.  3G0 ;  James  v.  Bixby,  11  Mass.  34;  Maryland  v. 
Webb,  16  John.  89 ;  Palmer  v.  Davis,  1  Term.  R.  108 ;  Hussey 
V.  Christie,  9  East's  R.  432. 

'  Pickering  v.  Holt,  6  Greenl.  R.  ICO. 

=  Portland  Rank  v.  Stubbs,  6  Mass.  422  ;  Badlam  v.  Tucker, 
1  Pick.  389.  In  Grant  v.  Norway,  2  Eng.  Law  and  Eq.  R.  337, 
Jervis,  C.  J.,  said  :  "  The  authority  of  the  master  of  a  ship  is 
large,  and  extends  to  all  acts  that  are  usual  and  necessary  for  the 
use  and  management  of  the  vessel,  but  it  is  subject  to  several  well- 
known  limitations.  He  may  make  contracts  for  the  hire  of  the  ship 
for  carrying,  or  he  may  vary  that  which  the  owner  has  made;  he 
may  take  up  moneys  in  foreign  ports,  and,  under  certain  circum- 
curastances,  at  home,  for  necessary  disbursements  for  repair,  and 
bind  the  owners  for  repayment ;  but  his  authority  is  limited  by 
the  necessity  of  the  case,  and  he  cannot  make  them  responsible  for 
money  not  actually  necessary  for  those  purposes,  although  he  may 
contend  that  it  is.     He  may  make  contracts  to  carry  goods  on 


EMPLOYMENT    OF    THE    SHIP.  IGS 

141.  When  a  vessel  is  intended  to  be  employed  as 
a  general  ship,  and  the  owners  do  not  interfere  with 
the  receipt  of  the  cargo,  they  are  bound  by  the  con- 
tracts of  the  master,  notwithstanding  the  ship  may 
be  at  the  place  of  their  residence.  When  an  owner 
is  on  board,  and  exclusively  attending  to  the  ship^ 
ment  of  the  cargo,  he  is  not  bound  by  the  master^s 
contract.  But  to  relie\'«  himself  from  liability,  he 
must  show  the  fact  that  he  was  exclusively  attending 
to  the  shipment  of  the  cargo.'  The  course  of  usual 
employment  is  evidence  of  authority  given  by  the 
owner  to  make  a  contract  for  him.^  The  right  of 
the  master  to  make  a  charter-party  in  the  home  port 
of  the  owners,  cannot  be  ordinarily  presumed  from 
his  character  as  master.  It  is  not  an  incident  to  his 
general  authority;  nor  can  it  be  presumed  as  an 
ordinary  superadded  agency.  But  if  he  has  been 
permitted  to  make  such  contracts  in  former  voyage^^ 
it  may  be  presumed  that  the  authority  has  beeu  <^^. 

freight,  but  cannot  bind  the  owner  to  carry  freight  ft'e$,     So,  with., 
regard  to  goods  put  on  board,  he  may  sign  tho  biH  oi;  lading,  am^i 
acknowledge  the  nature,  quality,  and  conditioj:^  o|  thp  goods.    Oou- 
stan-t  usage  shows  that  the  master  has  a  general  authority ;  and 
if  a  more  limited  authority  is  given,  tb.e  party  not  informed  of 
it  is  not  afTcctcd  by  such  limitatioA.    ^he  waster  is  a  general  agent 
to  perform  all  things  relating  to  tVc  uswal  oniploymentof  his  ship; 
and  his  authority,  us  such  agent,  to  perform  all  things  as  aro  noces-.^ 
sary  in  tlic  lino  of  business  in  which   ho  is  cnij)luycd,  cannot  bCj, 
limited  by  any  private  orders  not  known  to  the  party  in  any  way 
dealing  with  him"     Soo  also  Smith's  Mercantile  Law,  5;')^.     It 
may  be  added,  that  the  master  has  no  right  to  pledge  tho  ffcighl 
for  his  private  purposes.     2  Wash.  C.  C.  11.  297. 

'  Ward  v.  Green,  G  Cowcn,  17.'i. 

»  Id.  King  v.  Lennox,  19  John.  R.  235. 


lOi  THE    LAW    OF    SHIPPING. 

forred  on  him  for  future  voyages.'  The  master  in 
his  character  as  master,  has  no  authority  to  procure 
insurance,  nor  is  he  in  any  sense  an  agent  for  such 
purpose,  or  in  any  way  connected  with  it.^ 

142.  The  authority  of  the  master  to  sign  bills  of 
lading,  may  be  derived  either  from  express  delega- 
tion of  the  owner,  or  from  the  usual  course  of  busi- 
ness or  employment.  The  captain  of  a  vessel  en- 
gaged in  the  freighting  business,  who  is  in  the  habit 
of  receiving  goods  for  hire,  and  signing  bills  of  lading, 
has  authority  to  bind  the  owners  as  much  as  if  the 
authority  were  expressly  given.^  All  parties  con- 
cerned have  a  right  to  assume  that  the  agent  has 
authority  to  do  all  that  is  necessary ;  but  the  very 
nature  of  the  bill  of  lading  shows  that  it  ought  not 
to  be  signed  till  the  goods  are  on  board,  for  it  begins 
by  describing  them  as  "  shipped."  And  hence  the 
owners  of  the  ship  are  not  responsible  to  parties 
taking  a  bill  of  lading  which  has  been  signed  by  the 
master  without  receiving  the  goods  on  board."* 

143.  Ordinarily,  the  master  is  a  stranger  to  the 
cargo,  beyond  the  purposes  of  safe  custody  and  con- 
veyance. But  in  cases  of  instant  and  unforeseen  and 
unprovided  for  necessity,  the  character  of  agent  and 
supercargo  is  forced  upon  him,  not  by  the  immediate 
act  and  appointment  of  the  owner,  but  by  the  gene- 

*  The  Schooner  Tribune,  3  Sura.  E.  144. 

a  Gen.  Int.  Ins.  Co.  v.  Kuggles,  12  Wheat.  R.  408  ;  Patterson 
V.  Chalmers,  7  B.  Monroe's  II.  595. 

=•  Nichols  V.  De  Wolf,  1  Rhode  Island  R.  277. 

*  Grant  v.  Norway,  supra.  Vide  post,  part  2,  tit.  ''Conveyance 
of  Goods  in  a  General  Ship." 


EMPLOYMENT    OF    THE     SHIP.  165 

ral  policy  of  the  law/  Ordinarily,  however,  his 
power  relates  merely  to  the  carriage  of  goods,  and 
the  supplies  requisite  for  the  ship ;  and  the  owner  of 
the  ship  cannot  be  bound  by  any  contract  of  the 
master  concerning  the  purchase  of  the  cargo.  To 
bind  the  owner  in  such  a  contract,  he  must  have  a 
special  authority.'  That  authority  will  be  presumed, 
if  the  owners  have  permitted  the  master  to  purchase 
on  their  account,  or  have  ratified  such  acts  when 
known  to  them.  By  so  doing  they  have  held  him 
out  to  the  world  as  their  agent  authorized  to  pur- 
chase, and  are  justly  bound  by  his  acts.^ 

'  The  Gratitudine,  3  Hob.  Ad.  R.  240. 

2  Ilathon  V.  Curtis,  8  Greenl.  R.  356 ;  Hewitt  v.  Buck,  17 
Maine,  153. 

^  Hewitt  V.  Buck,  supra.  The  captain  of  a  steamboat  has  autho- 
rity to  contract  for  freight  or  passengers,  to  be  carried  according  to 
the  usual  trade  of  the  boat;  and  the  owners  are  bound  by  such  con- 
tract, even  witliout  their  assent  given  thereto.  And  he  is  personally 
liable  for  the  diligence  of  all  persons,  even  for  a  pilot  appointed  by 
the  owners,  and  for  injuries  resulting  from  want  of  due  care.  In 
the  case  of  Denison  v.  Seymour,  9  Wend.  R.  1,  Savage,  Ch.  J.,  in 
giving  the  opinion  of  the  Court,  said :  ''  I  am  of  opinion  that  the 
fact  of  the  pilot  being  chosen  by  the  owners  docs  not  alter  the  law 
as  to  the  captain's  responsibility.  Suppose  the  owners  should  con- 
tract, not  only  with  the  pilots,  but  with  all  the  hands  on  board, 
through  the  agency  of  some  other  person  besides  the  captain,  as 
they  probably  do,  would  the  captain  therefore  become  entirely  ir- 
responsible ?  and  must  any  one  whose  vessel  has  been  run  down, 
when  a  totally  irresponsible  person  was  at  the  wheel,  bring  his 
suit  against  a  common  sailor?  The  owners  of  a  vessel  may  not 
be  known  ;  they  may  be  residents  of  a  foreign  country.  It  wouhl 
be  adding  insult  to  injury  to  say  to  a  man,  whose  property  had 
been  destroyed,  that  he  has  his  remedy  against  a  common  sailor, 
or  the  owners,  who  perhaps  live  in  ]Curnpe.  My  opinion  is,  tli:it 
the  master  of  a  steamboat  is  liable  like  the  master  of  a  merchant 


IGG  THE    LAW    OF    SHIPPING. 

144.  By  the  general  maritime  law,  every  contract 
of  the  ma.ster,  within  the  scope  of  his  authority, 
binds  the  vessel,  and  as  incident  thereto,  the  freight, 
and  gives  the  creditor  a  lien  upon  both  for  his  secu- 
rity.' The  ship  is  bound  to  the  merchandise,  and 
the  merchandise  to  the  ship.  The  shipper  of  goods, 
therefore,  has  a  lien  on  the  vessel,  for  any  damage 
they  may  sustain  from  the  fault  or  neglect  of  the 
master,  or  the  insufficiency  of  the  vessel.  This  lien 
may  be  enforced  in  the  Admiralty  by  process  in  rem.^ 
The  lien  of  the  merchant  for  his  damages,  attaches 
from  the  moment  that  the  misfortune  happens,  and 
his  claim  upon  the  ship  is  preferred  to  the  right  of 
the  general  creditors  of  the  owners.  But  like  all 
other  maritime  liens,  it  may  be  lost  by  unseasonable 
delay  in  enforcing  it.  Obviously,  however,  it  is  not 
defeated  by  a  hona  fide  sale,  before  he  has  had  an 
opportunity  to  enforce  it,  and  still  more  obviously 

ship ;  and  that  the  circumstance  of  the  pilot's  being  appointed  by 
the  owners  does  not  discharge  that  liability,  so  far  as  third  per- 
sons are  concerned."  See,  also,  Porter  v.  Curry,  7  Louis.  R.  238 ; 
Patton  V.  Magrath,  1  Rice's  R.  162.  To  make  a  person  liable, 
who,  otherwise,  upon  strict  legal  principles,  would  not  be  liable, 
because  inconvenience  might  arise  to  third  persons,  if  responsibi- 
lity were  not  attached  to  him,  is  neither  philosophical  nor  just. 
The  general  liability  of  the  master,  for  the  diligence  and  care  of 
all  persons  under  his  command,  within  the  scope  of  their  employ- 
ment, is  universally  recognised.  If  the  owner  has  appointed  in- 
competent persons  to  serve  under  him,  he  may,  for  that  reason, 
decline  the  command — refuse  to  take  it  upon  him.  But  if  he  does 
assume  it,  he  assumes  all  the  responsibility  attached  to  it. 

'  The  Paragon,  Ware's  R.  332. 

3  The  Rebecca,  Ware's  R.  188;  The  Phebe,  Id.  p.  203;  The 
Brig  Casco,  4  Law  Rep.  471 ;  S.  C  Davies,  R.  184 ;  The  Schooner 
Volunteer,  1  Sum.  R.  551. 


EMPLOYMENT    OF     THE     SHIP.  167 

■when  the  purchaser  has  knowledge  of  the  claim.  By 
the  civil  and  common  law,  the  owner  is  responsible 
for  all  the  obligations  of  the  master  to  their  full 
amount,  whether  arising  ex  contractu  or  ex  delicto. 
But  the  general  maritime  law  of  Europe  limits  the 
liability  of  the  owner  in  cases  arising  ex  delicto,  to 
the  value  of  the  vessel  and  freight,  and  by  abandon- 
ing them  he  is  discharged/ 

145.  This  limitation  of  the  responsibility  of  owners, 
however,  has  never  been  adopted  in  this  country. 
It  must  be  understood  that  it  is  not  every  wrongful 
act  of  the  master  that  will  bind  the  owner,  or  will 
ojierate  an  h}'pothecation  of  the  ship.  It  is  those 
acts  only  which  fiiU  within  the  legitimate  range  of 
his  authority  that  produce  this  effect.  While  acting 
within  these  limits  he  binds  the  owners,  because  he 
is  their  authorized  agent ;  and  he  binds  the  ship  di- 
rectly, because  the  policy  of  the  maritime  law  has 
given  to  the  shipper  this  additional  security.^ 

14G.  Hence  it  is,  that  a  shipper  has  a  lien  on  the 
vessel  for  the  execution  of  a  contract  by  a  bill  of 
lading,  entered  into  by  the  master,  which  may  be 
enforced  hy  process  in  rem  in  the  Admiralty.  And 
it  is  immaterial  in  this  respect,  whether  the  vessel  is 
in  tlie  employment  of  the  owner,  or  let  by  a  charter- 
party  or  ])arol  agreement,  on  the  condition  that  the 
hirer  shall  have  the  whole  control  of  her.  By  the 
maritime   law,  the   master's   authority  to   l)in(l  the 

»  The  Rebecca,  Ware's  R.  188.  The  Statute  Law  of  Maine  has 
affixed  the  same  liiiiita  to  the  owner's  liability.  Vide  Laws  of 
Maine,  vnl.  1,  ch.  14,  8,  8. 

'  The  Rebecca,  svjira. 


IGS  Tin:     LAW    OF     SHIPriNG. 

vessel  is  the  same,  whether  he  is  appointed  by  the 
owners,  or  the  ship  is  let  to  him  by  a  charter-party. 
Whoever  deals  with  the  master,  in  all  cases  where 
he  is  acting  within  the  scope  of  his  authority  as  mas- 
ter, by  the  policy  of  the  law,  and  upon  a  principle  of 
common  justice,  is  entitled  to  look  to  the  ship  as  his 
security.  And  that  security  is  not  merely  collateral 
or  accessory  to  that  of  the  owner,  but  it  is  the  pri- 
mary security.^ 

147.  AVhen  the  master  contracts  without  any  im- 
plied authority  of  the  owners,  arising  out  of  the  usual 
course  of  employment  of  the  ship,  theyare  not 
bound.  Hence,  if  a  ship  is  not  put  up  to  freight, 
but  is  employed  by  the  owner  on  his  own  account, 
and  the  master  receives  goods  of  another  person  as 
part  of  his  privilege,  taking  to  himself  the  freight 
and  commissions,  the  owner  of  the  ship  is  not  liable, 
in  case  of  embezzlement,  or  for  the  conduct  of  the 
master  in  relation  to  such  goods."^     Nor  is  the  owner 


1  The  Druid,  6  Jurist,  441 ;  S.  C  1  W.  Rob.  R.  301 ;  The 
Waldo,  Davies  R.  161;  The  Phebe,  Ware's  R.  263. 

=  King  V.  Lennox,  19  John.  R.  235.  This  was  an  action  of 
assumpsit,  brought  against  the  defendant,  as  owner  of  the  ship 
called  the  Ram-Duloll-Day,  to  recover  the  value  of  certain  goods 
fchipped  on  board  of  that  vessel,  on  account  of  the  plaintiffs,  and 
consigned  to  them,  on  her  voyage  from  Calcutta  to  New  York,  in 
the  year  1817.  The  cause  was  tried  before  Mr.  Chief  Justice 
Spencer,  at  the  New  York  Sittings,  in  April,  1820.  A  verdict 
was  taken  for  the  plaintiffs  for  1494  dollars  and  75  cents,  subject 
to  the  opinion  of  the  Court  on  a  case  made.  It  appeared  that  the 
master  of  the  vessel,  on  the  outward  voyage  from  New  York  to 
Calcutta,  received  from  the  plaintiffs  a  quantity  of  cheese  and  ver- 
digris, which  was  shipped  as  part  of  the  master's  privilege,  allowed 


EMPLOYMENT     OF     THE     SHIP.  169 

liable  for  goods  clandestinely  taken  on  board  by  the 
master,  he  being  present  and  having  the  manage- 
ment of  the  voyage  himself,  or  being  accidentally 
absent  leaves  an  agent  to  whom  he  confides  that 
business,  intrusting  nothing  to  the  master  but  the 
care  of  sailing  and  directing  the  ship  herself  If, 
however,  the  ship-owner  under  such  circumstances 
assents  to  and  adopts  the  act  of  the  master,  he  will 
be  held  accountable/  The  principle  is,  that  when 
the  owner  takes  upon  himself  the  general  manage- 


to  him,  as  is  usual  by  owners  of  vessels,  and  which  were  sold  in 
C,  two-thirds  for  account  of  the  plaintiifs,  and  one-third  for  ac- 
count of  the  master ;  and  the  proceeds,  deducting  the  homeward 
freight  and  commission  which  were  received  by  the  master,  were 
invested  in  the  goods  of  the  country,  packed  in  a  trunk,  laden  on 
board  of  the  R.,  and  consigned  to  the  plaintiffs,  at  New  York.  No 
part  of  the  shipment,  outward  or  homeward,  or  the  freight  or  com- 
missions, were  entered  in  the  ship's  accounts;  but  the  same  were 
considered  as  part  of  the  master's  privilege.  The  ship  was  not  a 
general  ship,  but  was  wholly  laden  on  account  of  the  owner,  ex- 
cept the  usual  privileges  allowed  the  supercargo,  master,  and  other 
officers.  The  trunk  containing  the  goods  in  question  was  stowed 
in  the  cabin  of  the  ship,  under  the  master's  berth,  where  he  usually 
stows  some  part  of  his  privilege.  The  master  died  on  the  home- 
ward voyage.  On  the  arrival  of  the  ship  at  New  York,  the  trunk 
consigned  to  the  plaintiffs  was  opened  at  the  custom-house,  by  per- 
son.s  appointed  by  the  collector  of  the  customs;  when  two  shawls, 
all  the  pearls,  and  eight  pieces  of  clmppa  romalls,  mentioned  in 
the  invoice,  to  recover  the  valu(!  of  wliich  this  suit  was  brought, 
were  missing,  ft  was  held,  that  tlie  owners  were  not  bound — the 
fihip  being  freighted  wholly  by  them,  and  the  master  having  no 
authority  from  them  to  receive  goods  on  freight.  See,  also,  ^V^altcr 
v.  IJrewer,  II  .Mass.  II.  09;  Ward  v.  Green,  G  Cowcn,  173;  Peters 
v.  IJ.iIIisticr,  3  I'ick.  40.^. 

'  Walter  v.  IJrewcr,  I  1    M.i.^..  It.  !l!)  ;   licynolds  v.  Toppan,  19 
Ma.ss.  Jl.  .';70. 


170  THE    LAW    OF    siiirriNG. 

ment  of  the  concerns  of  the  vessel,  he  thereby  lunlts 
]iro  tanio  the  authority  of  the  master,  and,  therefore, 
when  he  makes  a  contract  respecting  the  employ- 
ment of  the  ship,  the  master  cannot  make  another 
to  annul  or  supersede  it.^ 

148.  It  should  be  here  observed,  that  usage  has 
given  to  the  masters  of  vessels  certain  privileges  of 
transportation  and  traflic.  These  privileges  may  be 
abandoned  by  contract.  Hence,  where  a  master  and 
supercargo  was  to  receive  a  certain  sum  per  month 
as  wages,  and  a  commission  of  five  per  cent.,  and 
also  one-tenth  of  all  the  profits,  and  it  was  agreed 
that  these  were  to  be  in  full  of  all  services  and  pri- 
vileges, the  master  and  supercargo  is  precluded  by 
his  contract  from  engaging  in  traffic  upon  his  own 
account  and  for  his  own  benefit.^ 

149.  If  the  shipper  consigns  his  goods  to  the  mas- 
ter for  sale  and  returns,  in  proceeding  to  dispose  of 
them  he  does  not  act  under  any  authority  derived 
from  his  appointment  as  master,  but  in  an  entirely 
new  character,  that  of  supercargo  or  factor.  And 
his  duties  and  liabilities  under  these  two  characters 
are  as  distinct  and  independent  as  they  would  be  if 
the  trusts  were  confided  to  different  persons.  In  all 
that  relates  to  the  transportation  of  the  goods  and 
navigation  of  the  ship,  he  acts  as  master ;  and  all 
that  he  does  in  relation  to  the  disposition  of  the 
merchandise,  is  referred  to  his  character  as  factor. 


'  Ward  V.  Green,  6  Cowcn,  173 ;  Peters  v.  BuUistier,  3  Pick. 
495 ;  Burgen  v.  Sharpe,  2  Camp.  R.  529. 

2  Mathewson  v.  Clark,  G  How.  (U.  S.)  R.  122. 


EMPLOYMENT    OF    THE     SHIP.  171 

In  these  cliaracters  he  is  the  agent  of  different  prin- 
cipals ;  in  the  first  he  is  the  agent  of  the  ship-owners, 
and  his  acts  are  imputable  to  them ;  in  the  second 
he  is  a  stranger  to  them,  and  they  are  no  more  re- 
sponsible for  his  acts  than  they  would  be  for  those 
of  a  third  person  to  whom  the  shipper  should  con- 
sign his  goods.  In  the  transaction  of  that  business 
he  is  the  agent  of  the  shipper.^  When,  however,  it 
is  the  usage  of  the  particular  trade  for  the  master  to 
act  as  consignee,  and  bring  back  the  proceeds  of  the 
goods  shipped,  for  all  which  a  proper  compensation 
is  allowed  in  the  nature  of  freight,  the  owners  are 
liable  for  the  proceedings  of  the  master  in  conduct- 
ing such  sales,  and  for  the  proceeds  received  by  him.^ 

'  The  Waldo,  Davies'  R.  161. 

*  Eraery  v.  Herscy,  4  Greenl.  R.  407 ;  Kemp  v.  Coughty,  11 
John.  R.  107;  Kendrick  v.  Dchxficld,  2  Caines  R.  G7;  Earl  v. 
Rowcroft,  8  East.  R.  120,  140;  Cooke  v.  Com.  Ins.  Co.  11  John. 
R.  40;  Crousillat  v.  Ball,  4  Dall.  294.  The  case  of  Kemp  v. 
Coughty,  sitjtra,  arose  in  the  trade  between  New  York  and  Albany. 
It  was  proved  to  be  the  usual  course  of  the  trade,  to  send  goods 
with  orders  to  the  master  to  sell  either  for  cash  or  ercdit,  and  for 
him  to  return  the  proceeds  to  the  shipper.  No  commissions  were 
allowed  the  master  fur  (his  service,  nor  to  the  owners,  beyond 
what  was  involved  in  the  freight.  It  was  decided  when  the  master 
had  sold  the  goods,  and  failed  to  pay  over  the  proceeds  to  the 
ahippor,  that  the  owners  of  the  vessel  were  liable.  The  liability, 
in  that  case,  was  not  founded  on  the  general  maritime  law,  but 
arose  out  of  tlie  particular  custom.  Under  that  custum  the  .'^hip- 
owners  undertook  to  act  in  the  character  of  factors,  as  well  as  car- 
riers; and  intrusting  the  whole  business  to  the  master  as  (heir 
servant,  they  would  be  answerable  for  him  jirrsoiKi////  in  one  cha- 
racter or  the  other.  It  is  another  (jucsdon,  whether  I'nr  his  de- 
faults in  the  character  of  factor  the  shippers  would  ha\e  a  rtMiiedy 
against  the  vessel  in  rem.  That  is  an  open  question.  JJut  it 
would  seem  that  there  is  no  substantial  grouud  upon  which  to  hold 


172  THE    LAW    OF    SniPPING. 

150.  It  has  been  supposed,  that  as  the  master 
could  bind  the  owners  for  all  necessary  repairs  and 
supplies  furnished  during  the  voyage,  they  became 
ipso  facto,  acceptors  of  his  drafts  drawn  in  payment 
of  them.  But  such  is  not  the  case.  There  is  no 
such  legal  relation  Ijetween  the  master  of  a  vessel 
and  his  owners,  that  they  become,  by  force  of  such 
relation,  acceptors  of  a  bill  of  exchange  drawn  by 
him  in  a  foreign  port  for  supplies  for  the  vessel. 
There  is  no  doubt  of  the  master's  power  to  bind  his 
owners  for  repairs  and  supplies  in  a  foreign  port. 
His  agency  as  master  is  sufficient  to  bind  them  for 
the  payment ;  and  to  enable  him  also  to  obtain  the 
credit,  he  may  pledge  the  vessel  by  bottomry  con- 
tract, and  hypothecate  the  freight  and  cargo  belong- 
ing to  the  owners ;  but  he  cannot  draw  bills  of  ex- 
change, and  bind  them  in  law  as  acceptors,  from  the 
fact  that  the  bills  are  drawn  for  supplies.  The  law 
imposes  no  such  liability  upon  them,  and  places  no 
such  temptation  in  the  hands  of  the  master  to  ex- 
ceed his  authority.^ 

151.  Owners  are  answerable  for  the  torts  of  the 
master  done  within  the  scope  of  his  employment; 
and  this  responsibility  arises  from  a  general  prin- 
ciple of  the  maritime  law,  and  not  by  virtue  of  any 

the  vessel  liable  for  acts  of  the  master,  in  no  way  connected  with 
his  office  of  master.  The  case  of  Emery  v.  Ilersey,  mjyra,  turned 
upon  the  same  principles  as  were  involved  in  Kemp  v.  Coughty, 
and  was  decided  upon  the  ground  of  a  similar  custom  prevailing 
in  the  trade  between  Saco  and  Ncwburyport.  Vide,  also,  Emeri- 
gon,  Contrats  a  la  Grosse,  ch.  4,  s.  11,  and  Des  Assurances,  ch. 
12,  s.  3. 

•  Bowen  v.  Stoddard,  10  Met.  R.  375. 


EMPLOYMENT    OF    THE     SHIP.  173 

special  contract.'  The  Admiralty  has  jurisdiction 
in  cases  of  maritime  torts,  in  loersonam,  as  well  as  in 
rem,  and  may  issue  the  process  of  attachment  to 
compel  appearance,  both  in  cases  of  maritime  torts 
and  contracts.^  In  cases  of  collision  occurring  on 
the  high  seas,  from  want  of  care  and  skill  on  the 
part  of  the  injuring  ship,  the  familiar  remedy  in  the 
Admiralty  is  called  a  cause  of  collision.  It  lies 
against  the  owner  and  also  against  the  ship  itself. 

152.  In  a  very  recent  case  of  collision  in  the 
English  Admiralty,  it  was  held,  that  when  a  vessel 
at  sea  causes  damage,  an  inchoate  lien  emerges ;  and 
when  the  amount  of  the  damage  is  judicially  ascer- 
tained by  a  proceeding  in  rem,  the  lien  relates  back 
to  the  period  when  it  first  attached,  and  takes  pri- 
ority, to  the  extent  of  the  then  value  of  the  vessel,  of 
all  other  liens,  and  travels  with  the  vessel  wherever 
she  goes,  or  into  whose  hands  soever  she  passes; 
but  this  lien  arising  out  of  damage  is  not  indelible, 
but  may  be  lost  by  negligence  or  delay,  where  the 
rights  of  third  parties  are  compromised.  A  proceed- 
ing in  rem  in  the  Admiralty  Court  for  wages,  sal- 
vage, collision,  or  bottomry,  goes  against  the  ship  in 
the  first  instance.  A  maritime  lien  and  a  proceed- 
ing in  rem  are  correlative  :  wherever  a  proceeding  in 
rem  is  competent  a  lien  exists,  and  vice  versa.^ 

153.  This  is  the  first  case,  we  believe,  where  an 


'  Dean  v.  Angus,  Bee's  Ad.  II.  3G9. 

^Munro  V.   Almeida,    10  Wheat.   II.  473;  The   Invineiblc,  2 

Gaiiis.  II.  n. 

•••Tlio  Bold  IJuccleugli,  ?>  W.  Hob.  Ad.  220;  S.  C  American 
Law  Ilegistcr,  vol.  i.  p.  ol. 


174  THE    LA"\V    OF    SHIPPING. 

Englisli  or  an  American  Court  of  Admiralty  has  di- 
rectly held,  that  damage  caused  by  collision  was  a 
lien  on  the  colliding  vessel.  The  vessel  has  been 
held  liable,  as  a  means  of  security  for  the  damage, 
and  not  upon  the  ground  that  there  Avas  any  tech- 
nical lien.  The  practical  result,  however,  has  been 
the  same,  and  the  vessel,  in  either  case,  is  held  re- 
sponsible, even  in  the  hands  of  a  bona  fide  pur- 
chaser.' 

154.  But  while  the  law  holds,  and  justly  holds, 
the  owners  responsible  for  the  torts  of  the  master, 
done  within  the  scope  of  his  employment,  it  dis- 
charges them  from  all  liability,  when  he  quits  sight 
of  the  object  for  which  he  is  employed,  and  commits 
a  wanton  trespass.  He  is  then  not  obeying  their 
orders,  either  express  or  implied,  but  following  the 
suggestions  of  his  own  malice.  But  here  the  law 
makes  a  distinction,  and  holds  the  owners  account- 
able in  cases  of  general  malice,  as  when  a  steamer 
goes  through  a  very  crowded  roadstead  in  a  dark 
night,  occasioning  a  collision,  and  destroying  a  ship 
and  crew,  but  exonerates  them  in  a  case  of  particular 
malice.  The  law  implies  malice  in  an  act  of  the 
former  character,  and  makes  the  owners  answerable 
for  the  recklessness  of  their  servant  while  pursuing 
their  ])usiness — he  at  the  same  time  being  respon- 

'  The  Thames,  5  Rob.  345;  The  Dundee,  1  Hagg.  109;  The 
Woodrop  Sims,  2  Dod.  83,  1  Dod.  407;  The  Stockton,  Crabbe's 
R.  080.  What  is  stated  in  the  text  does  not  relate  to  the  ques- 
tion, whether  the  vessel  is  liable  in  rem,  in  a  cause  of  collision, 
when  she  is  in  charge  of  a  licensed  pilot  at  the  time  of  the  colli- 
fiion.     See  post,  pt.  2d,  tit.  Pilots. 


EMPLOYMENT    OF     THE     SHIP.  175 

sible  both  civillj'  and  criminally.  In  the  latter  case 
the  owners  are  not  accountable,  because  the  master, 
from  the  direct  instigation  of  malice,  goes  beyond 
the  line  of  his  employment,  and  wilfully  commits  a 
trespass,  as  when  intentionally  he  runs  another  ves- 
sel down/ 

155.  The  law,  upon  similar  grounds,  makes  the 
owners  of  privateers  liable  for  any  torts  committed 
by  the  master  and  crew  in  making  captures,  &c.,  in 
the  course  of  their  cruise.  Unoffending  neutrals 
are  not  to  be  subjected  to  acts  of  trespass  and  wrong 
committed  by  privateers,  and  then  turned  over  for 
their  remedy  to  the  actual  wrong-doers,  who  may  be 
wholly  irresponsible,  but  the  law  gives  them  a  two- 
fold remedy  against  the  owners  or  their  servants. 

15G.  When  the  suit  is  ao;ainst  the  original  wrona- 
doers,  Courts  of  law,  if  the  circumstances  of  the  case 
demand  it,  will  visit  upon  them,  in  the  shape  of  ex- 
emplary damages,  the  punishment  which  belongs  to 
their  lawless  misconduct.  But  when  the  suit  is 
against  the  owners  of  the  privateers,  different  consi- 
siderations  prevail.  The  law,  from  motives  of 
policy,  has  devolved  upon  them  a  responsibihty  for 
the  conduct  of  the  oflicers  and  crew  employed  by 
them,  while  they,  from  the  nature  of  the  service, 

>  The  Drnic],  G  Jurist,  144 ;  Wriglit  v.  Wilcox,  10  Won.l.  n\r,  • 
The  Kichmond  Turnpike  Company  v.  Vmidorbilt,  1  Ilill'.s  II. 
343;  M'Manus  v.  Crickctt,  1  East,  lOG;  IJowclicr  v.  Wid.stroiii, 
1  Taunt.  56S;  Lyons  v.  Martin,  .'}  Ncv.  &  Perry,  ODD;  Dii.«ar  v. 
Murgatroyd,  1  Wash.  C.  ('.  Jt.  13;  Stone  v.  Kotlaml,  M.  ll'J; 
see  Tlic  .State  llightg,  Crabbc's  II.  48. 


170  THE    LAW    OF    snipriNG. 

can  scarcely  ever  be  able  to  secure  to  themselves 
an   adequate  indemnity  in  cases  of  loss.      Hence, 
when  they  are  innocent  of  the  demerit  of  the  trans- 
action, having  neither  directed  it  nor  countenanced 
it,  nor  participated  in  it  in  the   slightest  degree, 
they  are  only  bound  to  repair  all  the  real  inju- 
ries and  personal  wrongs  sustained  by  the  injured 
party.     They  are  not  bound  to  the  extent  of  vindic- 
tive damages.     Nor  are  they  Ijound  for  any  deterio- 
ration of  the  cargo,  not  attributable  to  the  improper 
conduct  of  the  officers  and  crew  of  the  privateer. 
Nor  for  the  probable  or  possible  benefits  of  a  voyage. 
The  prime  cost  or  value  of  the  property  lost,  at  the 
time  of  the  loss,  and  in  case  of  injury,  the  diminu- 
tion in  value,  by  reason  of  the  injury,  with  interest 
upon  such  valuation,  affords  the  true  measure  for 
assessing  damages.     Nor  is  the  owner  of  the  priva- 
teer answerable  for  money  paid  to  the  master  and 
crew,  in  the  shape  of  ransom,  for  the  release  of  the 
property  unjustly  captured.     The  utmost  extent  of 
loss  to  which  the  owner  is  subjected  in  such  a  case, 
is  the  payment  of  the  costs  and  expenses  of  bringing 
the  property  to  adjudication ;  and  for  such  costs  and 
expenses,  so  far  as  they  were  incurred  and  paid  in 
any  particular  case,  the  party  paying  them  is  en- 
titled to  receive  a  recompense.^ 

157.  The  liability  of  the  owners,  however,  is  only 
in  those  cases  when  the  wrongful  capture  was  made 

»  The  Amiable  Nancy,  3  Wheat.  K.  546 ;  La  Amistad  de  Rues, 
5  Id.  384;  The  Mary,  1  Mason.  R.  305;  The  Owners  of  Three 
Brigs,  1  Dall.  R.  95 ;  Del.  Col.  v.  Arnold,  3  Dall.  R.  333 ;  St. 
Jean  Baptista,  5  Rob.  R.  33 ;  Karasan,  5  Rob.  291 ;  Nostra  Sig- 
nora  de  los  Dolores,  1  Dod.  290 ;  Die  Fire  Darner,  5  Rob.  357. 


EMPLOYMENT    OF    THE    SHIP.  177 

as  prize.  They  are  liable  in  such  cases,  because 
the  officers  and  crew  are  authorized  to  make  cap- 
tures as  prize ;  they  are  in  the  direct  execution  of 
the  business  in  which  they  are  employed,  when  they 
proceed  to  do  so.  But  the  owners  are  exonerated 
from  liability  when  the  acts  of  the  privateer  are 
piratical,  because  she  has  no  authority  to  commit 
acts  of  piracy.  When  she  commits  such  acts,  she 
exceeds  her  authority,  violates  her  orders,  acts  in  a 
business  different  from  that  for  which  she  was  em- 
ployed, and  is  guilty  of  crime.  There  is  no  principle 
of  law  or  justice  upon  which,  in  such  a  case,  the 
owners  can  be  held  liable.^     When  liability  is  fixed 

»  The  Privateer  Revenge,  3  Wash.  C.  C.  R.  262 ;  Bynk.  128, 
129,  133,  notes.  "  To  a  certain  extent,"  said  Washington,  J.,  in 
the  case  cited,  svpra,  "a  privateer  is  a  public  vessel,  and  forms  a 

part  of  the  national  armed  force In  other  respects,  she  is 

to  be  considered  as  private  property;  equipped  and  fitted  for  war 
at  the  solo  e.xponsc  of  the  owner;  navigated  by  officers  and  crew 
chosen  and  appointed  by  himself,  and  paid  by  him  ;  and  subject 
to  such  lawful  orders  and  instructions  as  he  may  think  proper  to 
give.  In  consideration  of  the  expense  to  which  the  owner  thus 
subjects  himself  in  co-operating  with  the  public  armed  force  in 
hostile  operations  against  the  enemy,  the  nation  cedes  to  him,  and 
those  he  may  employ  to  conduct  the  privateer,  the  exclusive  benefit 
of  all  the  spoils  which  his  ves.sel  may  lawfully  capture  as  prize;  to 
be  distributed  between  himself  and  the  officers  and  crew  of  his 
vc8.sel,  according  to  any  written  agreement  which  shall  have  been 
made  between  them ;  and  in  ca.sc  no  such  agreement  should  have 
been  made,  then  according  to  a  certain  ratio  prescribed  by  law. 
It  results  from  all  this  that  the  employment  of  a  privateer,  and 
the  trust  ronfided  to  her  officers  and  crew,  is  to  subdue  and  seize 
the  vessels  and  (rffccts  of  the  enemy  found  at  sea,  as  well  as  all 
other  vessels  and  effects,  to  whomsoever  belonging,  which  may  be 
liable  thereto,  according  to  the  law  of  nations;  and  to  bring  all 
such  property  into  a  port  of  the  capturing  power  for  adjudication 

12 


ITS  THE     LAW    OF    SHIPPING. 

upon  the  owners,  one  of  tlie  part-owners  cannot  ex- 
empt liiniseli'  Irom  damages  by  making  a  compensar 
tion  for  the  tort,  and  procuring  a  releasd  of  himself 
from  the  injured  party.'  The  real  owner,  although 
his  name  does  not  appear  in  the  bill  of  sale  or  ship's 
papers,  will  be  answerable  for  damages,  and  this 
liability  attaches  to  his  representative.'' 

as  prize  of  war."  For  captures  improperly  or  wrongfxdhj  made, 
the  owners  are  liable,  but  not  for  luwutlwrized  captures,  that  is, 
captures  made  in  a  business  different  from  that  for  which  he  was 
employed.  See  Judge  Hopkinson's  comments  upon  this  case  in  2 
Gilpin's  R.  48. 

1  The  Karsan,  5  Rob.  291. 

2  Nostra  Signora  de  los  Dolores,  1  Dod.  R.  290.  For  other 
cases  under  this  head,  see  Martens  v.  Ballard,  Bee's  Adm.  R.  51 ; 
Slowcum  V.  Mayberry,  2  Wheat.  R.  1 ;  The  Apollon,  9  Wheat. 
362 ;  Munro  v.  Almeida,  10  Ibid.  473 ;  The  Dundee,  1  Hagg. 
109  ;  Burke  v.  Trevitt,  1  Mason's  R.  96  ;  The  Enchantress,  1  Hagg. 
Ad.  R.  395 ;  Chamberlaiu  v.  Chandler,  3  Mason,  242. 


179 


CHAPTER   VIL 


OF  THE  MASTER'S  AUTHORITY  WITH  RESPECT  TO 

THE  VESSEL. 

I.  Of  the  Master's  Relation  to  tue  Owners. 
II.  Of  nis  Duties  in  Time  of  War. 


I.  OF  THE  MASTER'S  RELATION  TO  THE  OWNERS. 

158.  The  master  is  the  general  agent  of  the  owner 
or  employer  of  the  ship,  as  to  procuring  repairs  and 
supplies  for  the  ship,  in  a  foreign  port,  in  the  absence 
of  the  owner  or  employer.  This  power  is  not  un- 
hmited ;  but  is  restricted  to  such  repairs  and  sup- 
plies as  are  in  a  just  sense  necessary  for  the  ship 
under  the  actual  circumstances  of  the  voyage.  The 
interpretation  put  upon  the  phrase  necessary  repairs, 
is,  that  they  must  be  such  ^9  are  reasonably  fit  and 
proper  for  the  ship  under  the  circumstances,  and  not 
merely  sucli  as  are  absolutely  indispensable  for  the 
safety  of  the  ship,  or  the  accomplishment  of  the 
voyage.' 

150.  A  person  who  lends  money  to  be  employed 
in  the  repairs  of  a  vessel,  or  to  furnish  her  with  sup- 


•  The  Ship  Fortitude,  y  Sunin.  R.  22H,  23(; ;  The  Aurora,  1 
Wheat.  R.  102  ;  •'}  Kent's  Com.  10:3;   MoHoy,  H.  2,  c.  1,  sec.  10. 


180  THE    LAW    OF     SHIPPING. 

plies,  has  the  same  privilege  against  the  vessel  and 
freight  that  niatcrial-nien  have.  To  justify  the 
master  in  borrowing,  it  is  not  absolutely  essential 
that  the  occasion  should  arise  abroad  or  in  a  foreign 
port.  lie  may  borrow  in  a  port  of  the  State  in 
which  the  owners  reside,  if  the  case  is  one  of  press- 
ing necessity,  such  that  the  master  and  owner 
cannot  communicate  without  great  prejudice  and 
delay/ 

IGO.  The  master  himself,  unless  there  be  some 
special  agreement,  is  in  every  case  personally  respon- 
sible upon  all  the  contracts  which  he  makes  in  re- 
ference to  the  repairs,  supplies,  and  navigation  of 
the  ship.  But  if  there  is  a  special  promise  by  the 
owners,  the  master  is  discharged  from  any  obligation, 
and  on  the  other  hand,  if  there  is  a  special  promise 
by  the  master,  the  owners  are  not  liable.  In  the 
absence  of  any  special  contract,  both  the  master  and 
owners  are  bound  for  the  repairs  and  supplies  he  ob- 
tains for  the  ship.  The  master,  because  the  credit 
is  given  to  him ;  the  owner,  because  the  contract  is 
on  his  account.  If  the  repairs  and  supplies  are 
ordered  in  the  home  port,  they  will  generally  be  pre- 
sumed to  be  chargeable  to  the  master  as  well  as  to 
the  owner ;  the  same  as  if  obtained  in  a  foreign  port. 
But  if  it  is  shown  that  the  owner,  or  the  ship's  hus- 
band, managed  the  vessel,  and  that  the  party  con- 
tracting with  the  master  was  aware  of  this,  then  the 
presumption  of  the  master's  authority,  as  agent  of 

'  Hooper  v.  Whitney,  3  Kent's  Com.  172,  note ;  Arthur  v. 
Burton,  6  M.  &  W.  188  ;  Johns  v.  Simons,  2  Adol.  &  PJllis,  N.  S. 
424;  Stonehouse  v.  Gent,  Id.  431 ;  Davis  v.  Child,  Davies'  R.  71. 


master's  relation  to   the  owners.     181 

the  owners,  is  rebutted,  and  they  are  not  bound.  Of 
course,  when  the  repairs  or  supplies  are  ordered  by 
the  owners,  the  master  is  never  liable.  The  owners 
contract  for  their  ship,  the  credit  is  given  to  them 
only,  and  there  is  no  ground  upon  which  to  charge 
the  master.^ 

161.  When  the  repairs  and  supplies  are  reasonably 
fit  and  proper,  the  master,  if  he  has  not  suitable 
funds,  or  cannot  obtain  money  on  the  personal  credit 
of  the  owner,  may  take  it  upon  bottomry.  The 
lender  on  bottomry  is  bound  to  exercise  reasonable 
diligence,  in  order  to  ascertain  whether  such  repairs 
and  supplies  are  necessary  and  proper.  He  is  not 
bound,  however,  to  show  that  there  was  a  positive 
necessity.  It  is  sufficient,  if  there  is  an  apparent 
necessity,  so  far  as  the  lender  is  able  upon  due  in- 
quiry and  due  diligence  to  ascertain  the  facts.  The 
lender  upon  bottomry  will  be  protected  in  such  a 
case  of  apparent  necessity  for  his  advances,  even 
though,  upon  a  closer  examination,  and  a  more 
thorough  investigation  of  the  facts  at  a  subsequent 
period,  it  should  be  doubtful  whether  the  supplies 
and  repairs  were  really  necessary.  When  there  is  an 
apparent  necessity  for  repairs,  the  lender  on  bottomry 
is  under  no  obligation  toincpiirc,  as  to  the  best  mode 
of  making  the  repairs,  or  whether  they  are  made  in  the 

>  Sec  the  authorities  collected  in  Flanders'  Maritime  Law,  174, 
175.  It  must  be  understood  with  reference  to  the  doctrines  of 
the  text,  that  the  master  has  no  power  or  authority  over  the 
voyages  or  concerns  of  the  fihip,  or  the  interests  of  the  owners  be- 
yond what  the  law  of  his  own  country  justifies  and  sanctions. 
Pope  V.  Nickcrson,  .T  .Story's  R.  4G.'j;  ronlni  Malpicav.  M'Kuun, 
Miller's  Louis.  K.  240 ;  Arago  v.  Carrol,  Ibid.  52«. 


182  THE    LAW    OF    SHIPPING. 

most  judicious  manner,  or  to  ascertain  the  cause  of 
the  injury.  As,  when,  for  example,  an  acknowledged 
leak  exists,  how  it  is  caused.  It  is  sufficient,  if  he  acts 
with  good  faith ;  and  does  not  wilfully  co-operate  in 
any  unnecessary  expenditure.' 

162.  Although  the  owner  may  have  given  parti- 
cular instructions  to  the  master,  which  greatly  cur- 
tail his  general  authority,  he  will  nevertheless  be 
answerable  for  his  contracts  falling  within  the  gene- 
ral power  belonging  to  his  situation  and  character, 
notwithstanding  such  contracts  are  in  violation  of 
the  particular  authority  given  to  him.  But  the 
master  is  responsible  to  the  owner  for  the  injury 
sustained  by  him,  in  consequence  of  the  violation  of 
his  instructions.^  A  man  who  undertakes  to  navi- 
gate a  ship,  is  pledged  to  his  owners,  and  he  and 
they  to  all  the  world  who  may  be  affected,  for  his 
skill,  care,  and  attention.  It  is  not  sufficient  for 
him  to  say  that  he  exercised  his  best  judgment,  but 
he  is  bound  to  show  that  he  possessed  and  exercised 
the  judgment  of  a  skilful  and  careful  commander.^ 

163.  The  master  and  owners  are  responsible  for 
every  injury  that  might  have  been  prevented  by 

>  The  Ship  Fortitude,  3  Sum.  E.  228.  Mr.  Justice  Story,  in 
this  elaborate  and  learned  opinion,  has  fully  examined  the  whole 
subject,  and  left  nothing  to  be  added  to  the  questions  he  has  dis- 
cussed. See  Gibbs  v.  The  Texas.  Crabbe's  B,.  236;  Patton  v. 
The  Randolph,  Gilpin's  R.  457. 

'  Abbott  on  Ship.  p.  218;  Grant  v.  Norway,  2  Eng.  Law  and 
Eq.  R.  337. 

'  Stone  V.  Ketland,  1  Wash.  C.  C.  R.  142 ;  ante,  chap.  1,  and 
chap.  6. 


master's   relation   to   the   owners.     183 

human  foresight  or  care.  They  are  liable  for  goods 
stolen  or  embezzled  on  board  the  ship  by  the  crew 
or  any  other  persons,  although  no  negligence  may 
be  imputable  to  them.  The  rigor  of  the  law  in  this 
respect  arises  from  reasons  of  public  policy,  and  to 
prevent  the  combinations  that  might  be  made  with 
thieves  and  robbers.^  The  owner  is  exempt  from 
liabilitj'  for  acts  of  the  master  beyond  the  scope  of 
his  general  authority ;  for  no  one  is  answerable  for 
the  unauthorized  acts  and  doings  of  another.  Hence 
if  the  general  employment  of  a  vessel  is  in  the  coast- 
ing trade,  and  the  master,  without  any  authority, 
takes  goods  or  freight  for  a  foreign  voyage,  the  owner 
is  not  answerable  to  the  shippers.  In  such  a  case, 
notwithstanding  the  master  was  appointed  by  the 
owner,  yet  the  latter  could  defend  himself  on  the 
ground  that  he  never  had  employed,  or  authorized 
the  master  to  employ,  his  ship  in  such  a  voyage. 
Nor  is  the  owner  liable,  if  the  master  commits  acts 
of  piracy.  Such  acts  are  imputable  to  those  only 
who  perform  them,  and  cannot  upon  any  principle  of 
common,  maritime,  or  national  law,  be  visited  upon 
the  owner.^ 

1G4.  The  owners  may  dismiss  the  master  at  their 
pleasure.  It  is  no  part  of  the  contract  that  a  master 
once  engaged  shall  be  master  for  the  voyage  at  all 
events.  If  it  were  otherwise,  it  might  prove  ex- 
tremely injurious  to  owners,  on  account  of  the  very 
extensive  powers  tlie  master  has  over  their  property. 
The  owners,  however,  are  answerable  for  all  his  acts 

'  Schicffclin  v.  Harvey,  G  John  II.  170. 

»  Diaa  V.  Privateer  Revenge,  3  Wash.  C.  C.  R.  202. 


184  THE   LAW  OF   siiirriNG. 

done  within  the  scope  of  his  authority  anterior  to 
his  dismissal.  And  the  master  would  he  entitled  to 
compensation,  if  he  incurred  any  loss,  or  sustained 
any  damage  from  his  dismissal,  unless  it  was  for 
sulhcient  cause.  His  proper  remedy  in  such  a  case 
would  be  an  action  at  law.  Upon  a  general  retainer, 
for  no  particular  voyage,  the  master  may  be  dismissed 
at  any  time  without  cause  assigned;  because  the 
nature  of  his  employment,  upon  that  condition,  is  a 
mere  agency,  to  be  revoked  at  any  time  by  the  prin- 
cipal.' 

165.  The  Admiralty  will  dispossess  the  master  if 
the  owner,  or  a  majority  of  the  owners,  when  there 
are  several,  declare  their  disinclination  to  continue 
him  in  possession.  But  if  the  master  should  be  a 
part-owner,  the  Court  would  require  some  special 
reason,  before  proceeding  to  dispossess  a  person  who 
is  a  proprietor  in  the  vessel.^  Mr.  Curtis,  although 
he  admits  the  question  to  be  an  open  one,  and  the 
opinions  of  jurists  to  be  divided  upon  it,  concludes 
from  an  examination  of  the  ancient  maritime  codes, 
that  by  the  maritime  law  the  owners  have  a  right  to 
remove  the  master,  who  is  a  part-owner,  at  their  own 
pleasure,  paying  him  for  his  share  of  the  vessel ;  but 
if  he  is  removed  without  good  cause,  after  an  engage- 
ment for  a  particular  A'oyage,  he  thinks  they  are 
bound  to  pay  him  damages  for  the  loss  of  the  em- 
ployment as  master,  and  for  any  losses  or  liabilities 
he  may  have  incurred  by  reason  of  his  appointment.^ 

>  Montgomery  v.  Wharton,  1   Peters'  Adm.  R.  397 ;  S.  C.  1 
Dall.  R.  49;  Curtis's  Merchant  Seamen,  1G6. 
2  The  New  Draper,  4  Rob.  Ad.  2o7. 
^  Rights  and  Duties  of  Merchant  Seamen,  p.  1G4.    See  also  The 


THE    master's    duties    IN    TIME    OF    WAR.    185 


II.    OF  THE  MASTER'S  DUTIES  IN  TIME  OF  WAR. 

1C6.  It  is  a  principle  universally  applied  in  a 
Court  of  Prize,  that  the  act  of  the  master  of  the 
vessel  binds  the  owner  in  respect  to  the  conduct  of 
the  ship,  as  much  as  if  such  act  was  committed  by 
the  owner  himself.  The  law  invests  him  with  cer- 
tain powers  ;  and  if  he  abuses  his  trust,  it  is  a  matter 
to  be  settled  between  him  and  the  person  who  con- 
stituted him  master ;  but  his  act  of  violation  is,  as  to 
the  general  consequences,  to  be  considered  as  the  act 
of  the  owners.' 

167.  If  the  master  goes  to  a  blockaded  port  against 
the  orders  or  without  the  knowledge  of  the  owner, 
he  is  bound  nevertheless.  If  the  owner  trusts  his 
property  to  the  care  of  such  a  person,  he  must  be 
held  answerable  for  his  integrity,  and  in  some  degree 
for  his  prudence.  If  the  master,  after  being  warned 
of  the  existence  of  a  blockade,  approaches  the  block- 
aded port,  or  acts  in  such  a  manner  as  cannot,  for 
the  safety  of  other  cases,  be  admitted  to  proceed  from 
justifialjle  ignorance,  his  principal  must  take  the 
consequences  of  his  imprudence.^ 

168.  Ordinarily,  tlie  acts  of  the  master  do  not  bind 
the  owner  of  the  cargo,  he  not  being  the  representa- 
tive of  the  cargo,  nor  dc  jnrc  the  agent  of  its  owner. 

Johan  and  Siofrmund,  Edw.  Ad.  R.  242 ;  The  Sea  Hentcr,  1  Pod. 
Ad.  K.  22.  The  master  will  not  be  dis|)o.s.sc.ssed  where  there  is  a 
mere  equality  of  interest.     1  Ilagg.  Adm.  11.  340,  note. 

'  The  Vrouw  Ju.lith,  1  Hob.  Ad.  R.  150. 

»  The  Adonis,  5  Rob.  Ad.  R.  228. 


186  THE    LAAV    OF     SIIIPTING. 

If,  however,  the  owner  of  the  cargo  is  also  owner  of 
the  ship,  or  conusant  of  the  intended  vioLation  of 
belligerent  rights,  or  if  the  master  is  directly  the 
agent  of  the  owner  of  the  cargo,  in  these  cases  the 
acts  of  the  master  bind  the  owner  of  the  cargo,  as 
well  as  the  owner  of  the  ship.     When  the  master 
deviates  into  a  blockaded  port,  and  the  excuses  which 
he  sets  up  for  so  doing  are  pronounced  by  a  Court  of 
Prize  either  not  real  or  not  sufficient,  a  presumption 
necessarily  arises  that  it  was  for  the  delivery  of  the 
cargo  that  such  a  fraud  had  been  attempted.     Such 
a  presumption  necessarily  arises,  because  there  is 
scarceh'  any  other  adequate  motive  which  can  be 
supposed  to  induce  a  master  to  hazard  the  interests 
of  his  vessel;  the  motives  which  he  assigns  being 
demonstrated  to  be  false.     There  is  a  presumption 
also  in  such  cases,  that  the  act  of  the  master  was 
done  wdth  the  knowledge,  and  at  the  instigation,  of 
the  owner  of  the  cargo ;  because,  although  it  is  not 
an  impossible  thing  that  masters  may  be  guilty  of 
barratry,  it  is  not  a  natural  conduct,  nor  gratuitously 
to  be  supposed.     Lord  Stowell  held,  that  the  pre- 
sumption in  such  cases  was  absolutely  conclusive ; 
that  the  owner  of  the  cargo  was  absolutely  bound  by 
it,  and  could  not  be  admitted  to  rebut  the  presump- 
tion by  any  contrary  averment  whatever.     And  this 
on  account  of  the  fraudulent  abuse  to  which  such  a 
liberty  must  inevitably  lead,  since  it  would  be  per- 
fectly easy,  at  any  time,  to  set  up  the  pretence,  and 
equally  impossible,  on  the  other  side,  to  detect  it.^ 


'  The  AdoDis,  5  Hob.  Ad.  R.  228 ;  The  Mina,  3  Rob.  169 ;  The 
Rosalie  &  Betty,  2  Rob.  343,  351 ;  The  Alexander,  4  Rob.  93 ; 
The  Elsebe,  .5  Rob.  Ad.  R.  173 ;  The  Marianna,  Flora,  11  Wheat. 
57. 


THE    master's    duties    IN    TIME    OF    WAR.    187 

169.  There  are  other  cases  where  the  act  of  the 
master  ^Yill  bind  the  owner  of  the  cargo,  as  well  as 
the  owner  of  the  shij^.  One  of  the  most  prominent 
is,  a  resistance  of  the  right  of  search.  This  is  a  bel- 
ligerent right  of  long  standing,  and  of  manifest  ne- 
cessity. If  a  neutral  furnishes  to  one  belligerent 
articles  contraband  of  war,  he  gives  aid  to  that  belli- 
gerent, and  thus  directly  interposes  in  the  war.  A 
neutral  government,  encouraging  a  contraband  trade 
with  a  belligerent,  would  undoubtedly  be  deemed  to 
have  taken  such  a  part  in  the  war  as  to  become  a 
party  to  it.  But  when  the  citizens  of  a  neutral 
country,  without  any  implication  of  their  govern- 
ment in  their  unlawful  act,  engage  in  a  contraband 
trade  with  one  belligerent,  the  only  consequence  re- 
sulting from  such  conduct  is,  that  the  contraband 
goods  are  liable  to  seizure  and  confiscation.  To  as- 
certain whether  neutral  vessels  have  on  board  con- 
traband goods,  the  right  of  visitation  and  search  is 
essential,  and  lience  is  generally  acknowledged.  A 
resistance  therefore  to  this  admitted  right  is  per  se 
illegal.  It  is  an  attempt  fraudulently  to  withdraw 
the  cargo  from  the  rights  of  war,  and  the  cargo  there- 
fore as  well  as  the  vessel  is  condemnable  dejure.' 

170.  A  neutral  must  not  contribute,  either  di- 
rectly or  indirectly,  to  the  force  of  an  enemy.  Sail- 
ing under  convoy  is  not  an  act  of  itself  that  will 
subject  a  neutral  ship  and  cargo  to  confiscation,  but 
resistance  of  tlie  convoy  ship  is  the  resistance  of  the 
whole  convoy;  and  the  resistance  of  the  ship  affects 

'  The  Catharina  Elizabeth,  5  Ilob.  Ad.  11.  200 ;  The  Elaebe,  5 
Rob.  173. 


1S8  THE    LATT     OF     SHIPPING. 

the  cargo.'  And  in  all  cases  where  the  master  is  the 
agent  or  consignee  of  the  cargo,  his  act  will  bind  the 
owner  exactly  as  that  of  any  other  agent  or  con- 
signee. It  may  be  laid  down  as  a  proposition,  sanc- 
tioned by  the  law  of  nations,  that  any  illegal  act  of 
the  master  of  a  neutral  ship,  having  for  its  object 
the  benefit  of  the  cargo,  will  be  deemed  to  be  autho- 
rized by  the  owner  of  the  cargo,  and  will  subject 
both  ship  and  cargo  to  condemnation.^ 

'  The  Maria,  1  Rob.  340 ;  The  Elsebe,  supra. 
2  See- Appendix  to  2  Wheat.  R.  38;  Miston  v.  Lord,  Blatch- 
ford's  R.  357. 


189 


CHAPTER  VIII. 

OF  THE  MASTER'S  DUTY  UPON  AN  INTERRUPTION 

OF  THE  VOYAGE. 

171.  The  master  of  a  merchant  vessel  becomes  of 
necessity  an  authorized  agent  for  the  owners,  freight- 
ers, insurers,  and  all  parties  concerned  in  the  voy- 
age, when  its  progress  is  interrupted  either  by  a  cap- 
ture as  prize,  or  by  other  detentions  and  casualties ; 
and  whatever  he  undertakes,  and  whatever  expenses 
he  may  incur  fairly  directed  to  the  benefit  of  all  con- 
cerned, become  a  charge  upon  them  respectively,  in 
the  same  manner  as  if  incurred  at  their  special  re- 
quest.' 

172.  If  the  ship  is  driven  out  of  her  course  by 
stress  of  weather,  the  charge  of  the  cargo  devolves 
upon  the  master,  who  is  bound  to  take  proper  care 
of  it.  If  tlie  goods  are  damaged,  or  of  a  perishable 
nature,  he  has  power  to  sell  them.  If  they  are  so 
much  damaged  that  to  proceed  with  the  voyage  will 
endanger  the  safety  of  the  ship  or  render  the  goods 
worthless,  it  is  the  duty  of  the  master  to  land  and 
sell  them  at  the  port  of  necessity,  in  the  absence  of 
instructions  from  tlie  shipper,  even  tliough  they  may 
be  in  a  coiKlitloji  to  be  carried  in  specie  to  the  port 


'  Douglass  V.  Moody,  9  Mass.  548. 


190  THE    LAW    OF    SniPPING. 

of  destination  and  there  landed.  If  a  part  of  the 
cargo  is  in  good  condition  and  not  perishable,  the 
master  has  no  right  to  sell  it  without  the  order  of 
the  owners,  to  whom  he  is  bound  to  give  immediate 
information.' 

173.  If  the  ship  is  disabled  from  performing  the 
voyage  by  the  perils  of  the  sea,  the  master  must  ob- 
tain another  vessel,  if  one  can  be  procured  in  the 
same  or  a  contiguous  port,  and  proceed  with  the 
cargo  to  the  port  of  destination.  This  rule,  how- 
ever, is  not  absolutely  inflexible.  The  master  is  in 
loco  procurator  is,  both  to  the  ship  and  cargo.  He  is 
bound  to  exercise  a  sound  discretion  in  the  circum- 
stances in  which  he  is  placed.  And  if  it  appears 
that  it  would  be  better  not  to  tranship,  owing  to 
reasonable  cause,  the  master  is  restrained  from  tran- 
shipment.^    Circumstances  make  it  necessary  to  re- 

'  Smith  V.  Martin,  6  Binn.  261;  Miston  v.  Lord,  Blatcbford's 
R.  357 ;  Jordan  v.  Warren,  1  Story's  11.  342. 

»  Luke  V.  Lyde,  2  Burr.  889 ;  Schicfflin  v.  Now.  York  Exch, 
Ins.  Co.  9  Johns.  R.  21 ;  The  Gratitudine,  3  Rob.  Adm.  R.  240; 
Searle  v.  Scovill,  4  John  Ch.  R.  21S,  3  Kent,  1G8.  "  It  is  clear 
from  all  the  authorities,"  says  Mr.  Curtis,  in  his  work  on  Mer- 
chant Seamen,  (both)  "  ancient  and  modern,  that  if  the  ship  can- 
not be  repaired  at  all,  or  not  without  very  great  loss  of  time,  the 
master  is  at  liberty  to  tranship,  and  so  to  earn  the  whole  freight. 
In  such  case,  the  freighter  is  bound  to  pay  the  extra  freight  for 
the  renewed  voyage,  which  the  master  pays  for  the  hire  of  the 
vessel  which  he  procures.  If,  however,  the  vessel  can  be  repaired 
in  a  reasonable  time,  and  the  cargo  is  not  perishable,  the  master  is 
not  bound  to  tranship,  but  he  may  detain  the  cargo  until  the  re- 
pairs arc  completed.  If  the  cargo  is  of  a  perishable  nature,  and 
there  is  not  time  or  opportunity  to  consult  the  proprietor,  he  may 
Bell  a  part  of  it,  or  hypothecate  the  whole,  if  necessary,  to  effect 


INTERRUPTION    OF    THE    VOYAGE.         191 

pose  a  large  discretion  in  the  master  or  owner,  while 
the  same  circumstances  require  that  the  exercise 
of  that  large  discretion  should  be  very  narrowly 
watched/ 

174.  If,  however,  the  ship  is  capable  of  repair, 
and  this  can  be  done  in  a  reasonable  time,  it  is  the 
duty  of  the  master  to  make  the  repair,  provided  he 
can  obtain  the  means.  If  he  cannot  obtain  them 
upon  the  security  of  the  ship,  he  may  h^'pothecate 
the  whole  cargo  or  sell  a  part,  and  apply  the  pro- 
ceeds to  the  prosecution  of  the  voyage.  ''  The  books 
all  admit  that  he  may  sell  a  part ;  some  ancient  re- 
gulations have  attempted  to  define  what  part,  others 
have  not.  The  general  law  does  not  fix  any  aliquot 
part,  and  indeed  it  is  not  consistent  with  good  sense 
to  impose  a  restraint,  or  to  fix  any  limitation  to  mea- 
sure a  state  of  things  which  is  to  arise  only  from 
necessity.  It  must,  generally  speaking,  be  adequate 
to  the  occasion.  One  limitation,  however,  the  policy 
of  the  law  necessarily  prescribes :  that  the  power  of 
selling  cannot  extend  to  the  wliole,  because  it  can 
never  be  for  the  benefit  of  the  cargo,  that  the  whole 
should  be  sold  to  repair  a  ship  which  is  to  proceed 
empty  to  the  place  of  her  destination.  There  will 
in  that  case  be  no  safe  custody  and  transmission,  and 
therefore  the  power  of  selling,  for  the  repairs  of  the 
ship,  must  be  limited  to  the  sale  of  a  jxirf,  though  it 
may  not  be  possible  to  assign  the  exact  part,  except 

the  repairs  of  the  hhip,  and  to  cnaljlc  him  to  carry  tlie  residue  for- 
ward, or  Iio  may  tranship  it,  according  as  in  tlie  hcst  exercise  of 
his  judgment  would  ho  for  the  interest  of  the  whole  cargo." 

'  Shipton  V.  TliorutoD,  9  Adol.  &  i^llis,  314 ;  sec,  also,  1  Perry 
&  Dav.  '21G. 


192  THE     LAW    OF     SHIPPING. 

where  positive  regulations  have  fixed  it."'  The 
reader  will  find  in  another  part  of  this  vohime  this 
subjeet  more  fully  considered,  and  the  rights  and 
duties  of  the  master  in  the  premises  more  fully  ex- 
plained.' 

175.  If  a  neutral  ship  is  carried  by  a  belligerent 
party  into  a  port  of  the  captors,  for  adjudication,  the 
mariners  are  bound  to  remain  by  the  ship  until  a 
condemnation  or  all  hope  of  recovery  is  gone,  and  a 
voluntary  abandonment  of  their  duty  in  this  respect 
amounts  to  desertion  and  forfeiture  of  wages.^  The 
obligation  of  the  master  to  remain  by  the  ship,  in 
such  circumstances,  is  far  more  strong  in  point  of 
right  and  duty  than  that  of  the  mariners.  He  is 
intrusted  with  the  authority  and  obligation  to  inter- 
pose a  claim  for  the  property  before  the  proper  tri- 
bunal, and  to  endeavor,  by  all  the  means  in  his  power, 
to  make  a  just  and  successful  defence.  To  abandon 
the  ship  to  her  fate,  without  asserting  any  claim, 
would  be  a  criminal  neglect  of  duty,  and  would  sub- 
ject him  to  heavy  damages  for  a  wanton  sacrifice  of 
the  property.  As,  therefore,  the  law  compels  him 
to  remain  by  the  ship,  and  attaches  him  in  some  sort 
to  her  fate,  he  is  entitled  to  receive  compensation  for 
his  services,  and  this  compensation  is  a  charge  to  be 
borne  in  the  first  instance  by  the  owner  of  the  ship, 
and  ultimately  as  a  general  average  by  all  the  parties 
in  interest.  If  the  master  should  deem  an  appeal  to 
be  expedient,  he  is  bound  to  enter  it,  and  may,  in 
his  discretion,  remain  until  copies  of  the  papers  are 

*  The  Gratitudine,  sripra.  '^  Post,  chap.  10. 

»  The  Brig  Elizabeth,  1  Peters'  Ad.  R.  128. 


INTERRUPTION    OF    THE    VOYAGE.         193 

obtained,  and  other  means  of  rendering  the  appeal 
effectual  are  concluded.^ 

176.  The  mariners,  however,  are  not  bound  to 
remain  with  or  near  the  ship  after  an  unfavorable 
adjudication  in  the  lower  Court  of  Admiralty  of  the 
captors,  though  an  appeal  may  be  entered,  and  the 
vessel  remain  in  custod}^  and  unsold.  But  they  are. 
bound,  as  already  stated,  to  wait,  if  required,  for  this 
adjudication  ;  not  only  to  take  care  of  the  ship  and 
her  cargo,  if  permitted  to  do  so,  but  to  afford  their 
testimony  in  the  cause,  when  required  to  be  used  on 
the  trial,  in  the  first  instance,  and  transmitted  among 
the  cq^o-steUa,  in  case  of  appeal.^  If  the  vessel  is 
carried  in  for  adjudication  on  account  of  the  cargo, 
the  master  must  contribute  his  exertions  to  rescue 
the  property  from  condemnation,  by  interposing  a 
claim,  and  exhibiting  in  support  of  it  the  documents 
with  which  he  is  furnished  for  its  protection.  If  he 
negligently  performs  this  duty,  and  the  proprietor  of 
the  goods  sustains  damage  in  consequence,  he  is  re- 
sponsible for  it.^  The  master  is  bound  to  save  for 
the  owners  the  ship  and  cargo  by  all  fair  means 
within  his  power,  but  he  is  not  bound  to  employ 
fraud  in  order  to  effect  the  object.'' 

177.  On  the  contrary  he  is  bound  to  the  exercise 
of  good  faith,  and  if  there  is  an  absence  of  it,  he  may 
subject  the  ()\vn(.'rs  to  costs  and  damages.     If  there 


'  Will;ir.l  V.  Dnrr,  I)  Mason's  R.  1C7. 
'  Tlic  Brig  Klizaljcth,  &iipra. 
'  Chcviott  V.  IJrookH,  1  .loliii.  W.  'M\\. 
♦  Ilannay  v.  Kvc,  3  Crauch's  11.  242. 
13 


104  THE    LAW    OF    siiirriNG. 

is  a  siipprossion  of  the  isliip's  papers,  a  fraudulent 
cover  of  belligerent  property,  an  illegal  rescue,  in  all 
such  cases  the  default  of  the  master  subjects  vessel 
and  cargo  either  to  condemnation  or  costs  and 
damages.^  Where  the  master  is  consignee  of  the 
cargo,  his  acts  are  to  be  referred,  in  respect  to  ship- 
pers, to  the  particular  character  in  which  the  acts 
are  done.  Generally  the  master  does  not  and  cannot 
lay  aside  his  character  and  responsibility  as  master, 
until  the  vessel  performs  her  voyage,  and  arrives  at 
the  port  of  destination.  The  accidental  circumstance 
of  the  character  of  consignee  being  added  to  that  of 
master,  cannot  qualify  or  alter  his  acts  as  master ; 
the  two  characters  being  wholly  distinct.^ 

178.  After  the  arrival  of  the  cargo  at  the  port  of 
destination,  the  acts  of  the  master  are  to  be  con- 
sidered as  done  in  his  character  of  consignee.  A 
new  relation  is  interposed,  and  the  master  now  acts 
as  the  agent  of  the  consignor.  And  if  in  the  sale 
of  the  cargo,  and  accounting  for  the  proceeds,  he 
acts  fraudulent!}^,  the  ship-owner  is  not  responsible. 
It  would  be  otherwise  if  the  owner  and  not  the  mas- 
ter received  the  commissions  upon  the  sale,  or  if  it 
were  the  usage  in  the  particular  trade  to  consign 
goods  to  the  master  for  sale,  and  the  freight  received 
by  the  owners  covered  the  whole  compensation  paid 
for  the  carriage  and  sale  of  the  goods.^ 


•  The  Elsebe,  5  Rob.  173 ;  The  Dispatch,  3  Rob.  279  ;  The 
Nereide,  9  Crunch,  388,  451. 

2  Kendrick  v.  Delafield,  2  Caine's  R.  67;  8  East's  R.  140;  4 
Dall.  R.  294 ;  Cook  v.  Com.  Ins.  Co.,  11  John.  R.  40. 

3  "Williams  v.  Nichols,  13  Wend.  R.  58;  Kemp  v.  Coughty,  11 
John.  R.  107. 


INTERRUPTION    OF    THE    VOYAGE.         195 

179.  For  in  these  instances  the  master  undertakes 
these  additional  duties,  as  the  agent  and  for  the 
benefit  of  his  owners.  He  is  not  acting  in  a  different 
capacity,  distinct  from  his  capacity  as  master,  and 
receiving  therefor  from  the  shippers  a  distinct  com- 
pensation. He  is  not  therefore  their  agent.  He 
acts  for  the  owners,  they  receive  the  benefit  of  his 
services,  and  are  responsible  for  his  conduct. 


190 


CHAPTER   IX. 

OF  THE  CARRIAGE  OF  GOODS. 

180.  We  are  now  to  consider  the  duty  and  obliga- 
tion of  the  master  and  owners  with  respect  to  the 
means  of  transporting  the  cargo.  And  in  doing  so, 
our  progress  will  be  but  little  impeded  by  contrary 
and  conflicting  decisions.  The  Courts,  not  only  of 
our  country  but  England,  and  we  may  add  the 
jurists  of  Continental  Europe,  have  concurred  with 
singular  unanimity,  in  holding  the  master  and 
owners  accountable  for  the  custody  and  safe  carriage 
of  the  cargo  intrusted  to  them,  and  generally  to  the 
same  extent  and  upon  the  same  grounds. 

181.  Our  law,  however,  holds  a  common  carrier 
to  a  stricter  liability  than  the  civil,  which  exone- 
rates him  if  the  loss  arose  from  robbery  or  irresistible 
force.'  Originally,  the  doctrine  of  the  common  law 
was  the  same,  and  a  common  carrier  was  not  charged 
in  the  case  of  robbery,  unless  he  travelled  by  dan- 
gerous ways,  or  at  unreasonable  hours.^  But  to  pre- 
vent the  combinations  that  otherwise  might  be  made 
with  thieves  and  robbers,  the  present  stern  rule  was 

'  Digest,  tit.  Nautac,  Cauponos,  &c.,  4,  9,  3. 
*  Jones  on  Bailments,  p.  103. 


OF  THE  CARRIAGE  OF  GOODS.      197 

adopted,  which  holds  common  carriers  liable  even 
though  they  are  overpowered  by  a  superior  force  and 
the  goods  stolen.^  Carriers  by  water,  whether  in 
foreign  or  inland  navigation,  are  subject  to  the  same 
strict  rule,  and  nothing  excuses  them  for  the  non- 
delivery of  the  cargo,  but  the  act^  of  God,  or  the 
public  enemy,  or  the  happening  of  an  event  expressly 
provided  for  in  the  charter-party  or  bill  of  lading.^ 

182.  We  shall  consider  in  a  subsequent  chapter, 
the  causes  which  will  excuse  common  carriers.  The 
subject  immediately  before  us,  is  the  duties  of  car- 

'  Forward  v.  Pittard,  1  T.  R.  27  ;  The  Huntress,  Davies'  R.  82  ; 
Hyde  V.  Trent  &  Mersey  Nav.  Co.,  5  T.  R.  389  ;  S.  P.  1  Esp.  3G ; ' 
Gibbon  V.  Paynton,  -i  Barr,  2298.  There  is  a  distinction  between 
the  case  of  a  common  carrier  and  a  bailee.  The  latter  is  only 
obliged  to  keep  the  goods  with  as  much  caution  as  he  would  keep 
his  own;  but  a  common  carrier,  in  respect  of  thJ  premium  he  is 
to  receive,  runs  the  risk  of  them,  and  must  make  good  the  loss, 
though  it  happen  without  his  fault;  the  reward  making  him  an- 
swerable for  their  safe  delivery.  Id.  The  real  reason  of  the  rule, 
however,  is  one  of  public  policy,  as  stated  by  Mansfield,  C.  J.,  in 
the  case  of  Forward  v.  Pittard,  stqn-a,  namely,  to  prevent  combi- 
nations with  thieves  and  robbers.  A  hoyman  who  undertakes  to 
carry  goods  must  deliver  them  safe  at  all  events,  and  nothing  ex- 
cuses him  but  the  act  of  God  or  the  King's  enemies.  Dale  v. 
Hall,  1  Wils.  281.  And  the  principle  of  this  latter  case  runs 
through  all  the  decisions,  and  marks  and  limits  the  common  law 
rosponsiljility  of  a  common  carrier.  By  the  civil  law,  a  steamboat 
destroyed  Ijy  fire  docs  not  make  the  owners  liable  to  freighters,  if 
they  show  the  use  of  proper  diligcncj^^^See  Hunt  v.  Morris,  6 
Martin's  Louis.  R.  G7G.  ^^-^ 

'  p:iliott  v.  Ru.<».sell,  10  John.  R.  1 ;  Story  on  Railmcnts,  s.  512- 
525;  .'{  Kent.  210;  2  Mans,  on  Ins.  ch.  12,  pp.  4S7,  ^!»2; 
Gilmorc  v.  Carman,  1  Smcdes  &  Mar.  279;  M'Grcgor  v.  Kilgorc, 
G  Ohio,  35S;  Kcmj.  v.  Conghty,  11  John.  107;  M'Artliur  v. 
Scars,  21  Wend.  193;  Abbott  on  Shipp.  424. 


108  THE    LAW    OF    SlIirPING. 

riers  by  sea,  with  respect  to  the  preparation  of  the 
voyage,  and  the  safety  of  the  goods.  And  first,  a 
vessel  must  be  provided,  tight,  staunch,  and  strong, 
with  evorytliing  requisite  for  the  voyage,  with  a 
master  of  due  skill,  and  a  sulhcient  crew.  The 
owner  is  bound  to  see  that  the  vessel  is  in  a  suitable 
condition  to  transport  her  cargo  in  safety.  vShe  must 
be  in  this  condition,  not  only  at  the  commencement 
of  the  vojMge,  but  she  must  be  kept  so  during  its 
continuance,  unless  the  perils  of  the  sea,  or  unavoid- 
able accident  prevent.  To  this  extent,  the  owner  is 
an  insurer  of  the  goods.  Hence,  if  they  are  lost  by 
reason  of  any  defect  in  the  vessel,  whether  latent  or 
visible,  known  or  unknown,  the  owner  is  answerable 
to  the  freighter,  and  upon  the  principle  that  he 
tacitly  contracts  that  his  vessel  shall  be  fit  for  the 
use  for  which  he  employs  her.^ 

183.  It  must  be  observed,  however,  that  there  is 
a  fundamental  difference  between  the  carrier's  con- 
tract and  the  contract  of  insurance.  By  regarding 
them  as  standing  upon  common  ground,  and  governed 
by  common  principles,  a  great  and  radical  error  is 
the  result.  For  a  breach  of  the  warranty  of  sea- 
worthiness in  the  contract  of  insurance,  is  not  visited 
on  the  insured  as  a  penalty,  but  operates  to  avoid 
the  policy  by  the  failure  to  perform  it  as  a  precedent 
condition.^     But  in  the  contract  for  the  carriage  of 

'  Silva  V.  Low,  1  John.  Cas.  184 ;  Putnam  v.  Wood,  3  Mass. 
381 ;  The  Brig  William  Henry,  4  Lou.  R.  223  ;  Bell  v.  Read,  4 
Binn.  127,  3  Kent.  205;  Hart  v.  Allen,  2  Watts'  R.  114;  Reed 
T.  Dick,  Ibid.  479. 

'  Hart  V.  Allen,  svpra,  overruling  Bell  v.  Read,  svpra.  Unsea- 
worthiness at  the  commencement  of  the  risk,  is  insufficient  to  bar 


OF  THE  CARRIAGE  OF  GOODS.      199 

goods,  the  seaworthiness  of  the  vessel  is  an  implied 
condition  of  the  contract,  but  not  a  precedent  condi- 
tion, and  therefore  the  want  of  it  does  not  throw 
upon  the  carrier  the  responsibility  of  an  insurer  for 
all  losses  that  may  subsequently  occur,  no  matter 
from  what  causes  they  proceed.  A  carrier  is  answer- 
able for  the  consequences  of  negligence,  not  for  the 
abstract  existence  of  it.  Hence,  if  his  vessel  is  not 
seaworthy,  but  the  cargo  is  not  injured  from  that 
cause,  but  from  a  peril  of  the  sea,  the  carrier  is 
exonerated.  If  his  dehnquency  produces  no  mis- 
chief, he  is  not  punishable  for  it.  But  we  shall  con- 
sider this  subject  more  at  large  in  a  subsequent 
chapter.^  The  law  implies  a  stipulation  on  the  part 
of  the  carrier  to  keep  the  vessel  in  repair  during  the 
progress  of  the  voyage.  If  she  meets  with  an  acci- 
dent, the  repair  must  be  effected  at  the  most  conve- 
nient port.     If  he  fails  to  do  this,  he  is  answerable 

a  recovery  for  a  loss  ■which  happened  after  an  original  defect  had 
been  removed.  Weir  v.  Aberdeen,  2  Barn.  &  Aid.  320.  And 
a  breach  of  the  warranty  has  not  a  retrospective  operation  so  as 
to  avoid  the  liability  of  the  insurer  for  a  previous  loss.  Anncn  v. 
Woodman,  3  Taunt.  209. 

>  Post,  chap.  12.  See  also  Ripley  v.  Scaife,  5  B.  &  C.  107; 
Garrigucs  v.  Cox,  1  Binn.  11.  592;  Kimball  v.  Tucker,  10  Mass. 
192;  Ibid.  483;  The  Waldo,  Davics'  11.  100;  The  Paragon, 
Warc'.s  II.  322.  In  the  case  of  the  Waldo,  siqira,  the  goods  were 
laden  on  deck  without  the  consent  of  the  shipper,  and  without  the 
sanction  of  custom.  It  was  held,  that  being  so  laden,  they  were 
at  the  ri.sk  of  the  carrier,  and  if  lost  or  damaged,  he  could  not 
protect  himself  by  .'showing  that  the  loss  or  damage  was  occasioned 
by  the  dangers  of  the  sea.  He  must  proceed  one  step  further, 
and  show  that  the  calamity  by  which  the  lo.ss  or  damage  occurred, 
would  have  been  equally  fatal,  even  if  they  had  been  properly 
scoured  under  dock.     Sec  also  The  I'aragon,  Ware's  U.  322. 


200  THE     LAW    OF    SIIiri'ING. 

for  any  loss  that  may  ensue ;  for,  as  before  observed, 
the  vessel  must  not  only  be  in  a  suitable  condition 
to  receive  the  cargo,  but  she  must  also  be  in  a  suit- 
able condition  to  retain  it,  and  transport  it  with 
safety  to  the  port  of  destination.  The  same  general 
principles  that  govern  in  policies  of  insurance,  are 
equally  applicable  to  charter-parties  and  contracts  of 
aflVeightment.^ 


*  The  authorities  arc  the  same  as  irf^ic  preceding  note.  See 
also,  Lyon  v.  Mells,  5  East.  R.  428;  Whitall  v.  Brig  M'llcnry,  4 
Louis.  II.  223  ;  M'Clures  v.  Hammond,  1  Bay.  99 ;  Harrington 
V.  Lylcs,  2  Nott  and  M'Cord's  R.  88.  This  latter  was  the  case  of 
a  boat  engaged  in  the  carrying  trade,  which  upset  in  the  Santee 
Canal,  with  a  cargo  of  cotton  on  board,  which  was  thrown  into  the 
water.  The  defendant  proved  that  he  was  unusually  careful,  and 
a  skilful  patroon  ;  that  his  boat  was  one  of  the  best  of  her  class, 
competent  to  carry  the  cargo  then  on  board,  and  manned  by  a 
competent  crew ;  that  after  she  entered  the  Congarcc  River,  she 
was  lashed  to  another  boat  of  the  same  size,  to  guard  against  any 
accidents  from  upsetting,  but  that  it  became  necessary  to  separate 
them  to  pass  the  canal ;  and  that  the  day  on  which  they  entered 
the  canal,  an  incessantly  heavy  rain  had  fallen,  which  wet  the  bales 
on  top.  One  of  the  witnesses  stated,  that  it  was  apparent  that  the 
boat  was,  from  that  cause,  top-heavy  after  she  was  separated  from 
the  other;  that  they  remained  that  night  in  the  canal;  and  that 
the  defendant,  to  guard  against  her  upsetting,  lashed  her  to  the 
bank,  and  set  poles  on  the  opposite  side  (a  precaution  rarely  re- 
sorted to),  and  remained  on  board  himself  until  she  went  over, 
about  midnight,  without  any  obviously  recent  cause.  It  also  ap- 
peared, that  the  cotton  injured  was  at  the  bottom  of  the  boat,  and 
resulted  from  the  dripping  of  that  on  top ;  and  the  probability 
was,  that  if  it  had  been  laid  on  the  bank  and  suffered  to  drain,  no 
injury  would  have  been  sustained.  The  jury  found  a  verdict  for 
the  plaintiff  for  225  dollars.  A  motion  for  a  new  trial  was  refused, 
the  Court  holding  that  in  addition  to  the  liability  of  a  common 
carrier  for  all  losses,  except  those  occasioned  by  the  act  of  God 
and  the  enemies  of  the  country,  there  was  in  this  particular  case 


OF    THE    CARRIAGE    OF    GOODS.  201 

184.  It  is  proper  to  observe,  that  the  rule  which 
holds  common  carriers  in  vessels  upon  the  high  seas 
to  the  strict  Habihty  \Yhich  we  have  defined,  ap- 
plies with  all  its  force,  and  with  equal  proprietj^, 
to  carriers  upon  the  inland  waters  of  our  countr3\ 
The  vast  and  increasing  produce^  of  the  interior, 
finds  its  way,  in  a  great  measure,  through  these 
natural  avenues  of  communication  to  the  seaboard, 
and  demands  the  same  protection  during  this  transit 
as  upon  the  sea.^ 

185.  When  the  unseaworthiness  complained  of  is 
the  incompetency  of  the  crew,  the  owner,  to  exone- 
rate himself  from  liability  for  loss,  must  show  that 
in  point  of  flict  the  crew  was  competent.  In  a  re- 
cent case,  where  the  master  of  a  vessel  was  charged 
with  having  sailed  on  a  voyage  from  the  coast  of 
Africa,  with  a  sick  and  incompetent  crew,  whereby 
delay  was  caused,  and  damage  ensued  to  the  cargo, 
and  a  loss  of  price  in  selling  it,  it  was  held  that  the 
libellants  (it  was  a  libel  in  rem)  were  not  entitled  to 
recover  simply  upon  the  ground  of  what  subsequently 
happened.  On  the  contrary,  in  such  a  case  the  ques- 
tion is,  what  were  the  facts  on  which  the  master  was 
called  to  exercise  his  best  judgment  at  the  tim6  he 
sailed,  not  wliat  liappcned  afterwards.  It  was  held 
too,  that  the   evidence  of  tlio  crew  as  to  their  own 

negligence.     The  carrier  should  not  have  unloaded  his  boat  when 
the  cotton  was  dripping  witli  water  from  the  canal. 

*  Harrington  v.  J^ylca,  sitj/ra, ;  lluthcrford  v.  jM'Gowen,  1  Nott 
&M'Cord,  17;  Cook  v.  Gourdin,  2  Ibid.  10.  Th.;  latter  cases 
extend  the  doctrine  to  even  ferry  owners,  llichards  v.  Gilbert,  5 
Day,  415. 


20"2  THE    LAAV    OF    siiirriNG. 

health,  if  it  can  be  had,  must  control,  in  opposition 
to  the  testimony  of  persons  experienced  in  the  trade 
of  the  African  coast,  as  to  the  effect  of  the  given 
siclcness  upon  the  crew,  and  the  propriety  of  the 
master's  leaving  without  additional  hands.  Their 
opinion,  of  course,  must  depend  upon  the  extent 
and  deG;rce  of  the  sickness,  and  where  these  are  un- 
known  by  the  testimony  of  the  attending  physician, 
or  other  competent  person,  who  was  present  at  the 
time  and  place  of  sickness,  the  opinion  rests  upon  no 
data.  If,  therefore,  the  testimony  of  the  physician 
cannot  be  obtained,  then  the  crew  themselves  are 
the  best  witnesses.' 

186.  The  master,  both  on  his  outward  and  home- 
ward voyage,  in  sailing  down  rivers,  out  of  harbors, 
or  through  roads,  &c.,  where,  either  by  the  usage  or 
the  laws  of  the  country,  a  pilot  is  required,  is  bound 
to  take  one  on  board.^  A  vessel  coming  out  of  a  har- 

»  The  Gentleman,  Blatchford's  Rep.  196. 

2  Keeler  v.  Firemen's  Ins.  Co.,  3  Hill,  250 ;  M'Mullan  v.  U. 
Ins.  Co.  1  Rice  (S.  C.)  R.  248  ;  Bolton  v.  Amcr.  Ins.  Co.,  cited 
3  Kent,  17G,  note  {a);  Law  v.  Hollingsworth,  7.T.  R.  160;  Phil- 
lips V.  Ilcadlam,  2  Barn.  &  Ad.  384  ;  Dixon  v.  Sadler,  5  M.  & 
Wels.  405.  The  opinion  of  Baron  Parke,  in  this  latter  case,  will 
repay  an  attentive  perusal.  His  observations  relate  to  the  liability 
of  underwriters,  but  he  points  out  with  great  clearness  the  duty  of 
the  insured.  "If  the  insurance,"  he  remarks,  "attaches  before 
the  voyage  commences,  it  is  enough  that  the  state  of  the  ship  be 
commensurate  to  the  then  risk,  and  if  the  voyage  be  such  as  to 
require  a  different  complement  of  men,  or  state  of  equipment,  in 
different  parts  of  it,  as  if  it  were  a  voyage  down  a  canal  or  river, 
and  thence  across  to  the  open  sea,  it  would  be  enough  if  the  ves- 
sel were,  at  the  commencement  of  each  stage  of  tlie  navigation, 
properly  manned  and  equipped  for  it.     But  the  insured  makes  no 


OF  THE  CARRIAGE  OF  GOODS.      203 

bor,  must  have  a  pilot  on  board,  because  the  captain 
has  it  in  his  power  always  to  procure  one.  But 
when  he  arrives  off  a  port,  as  the  law  compels  no 
one  to  perform  impossibilities,  it  only  requires  that 

warranty  to  the  underwriters  that  the  vessel  shall  continue  sea- 
worthy, or  that  the  master  or  crew  shall  do  their  duty  during  the 
voyage ;  and  their  negligence  or  misconduct  is  no  defence  to  an 
action  on  the  policy,  where  the  loss  has  been  immediately  occa- 
sioned by  the  perils  insured  against.  This  prinei^^le  is  now  clearly 
established  by  the  cases  of  Burk  v.  Koyal  Ex.  Co.,  2  B.  &  Aid. 
72  ;  Walker  v.  Maitland,  5  B.  &  Aid.  171 ;  Iloldsworth  v.  Wise, 
7  B.  &  Cr.  794 ;  Bishop  v.  Pontland,  Id.  219,  and  Shore  v.  Bent- 
all,  Id.  798,  note.  Nor  can  any  distinction  be  made  between  the 
omission  by  the  master  and  crew  to  do  an  act  which  ought  to  be 
done,  or  the  doing  an  act  which  ought  not,  in  the  course  of  navi- 
gation      If  there  be  any  fault  in  the  crew, 

whether  of  omission  or  commission,  the  insured  is  not  to  be  respon- 
sible for  its  consequences The  only  case  which  ap- 
pears to  be  at  variance  with  this  principle,  is  that  of  Law  v.  IIol- 
lingsworth,  siq^ra,  in  which  the  act  of  the  pilot  who  had  been 
taken  on  board  for  the  navigation  of  the  river  Thames,  having 
quitted  the  vessel  before  he  ought  (under  what  circumstances  is 
not  distinctly  stated),  appears  to  have  been  held  to  vitiate  the  in- 
surance." But  Baron  Park  considered  this  case  to  be  overruled 
by  the  later  cases,  and  said  that  he  could  not  help  thinking  that 
the  absence,  from  any  cause  to  which  the  owner  was  not  privy,  of 
the  master,  or  any  part  of  the  crew,  or  of  the  pilot,  who  may  be 
considered  as  a  temporary  master,  after  they  had  been  on  board, 
must  be  on  the  same  footing  as  the  absence,  from  a  similar  cause, 
of  any  part  of  the  necessary  stores  or  equipments  originally  put  on 
board.  The  great  principle,  he  said,  established  by  the  more  recent 
decisions  is,  that  if  the  vessel,  crew,  and  equipments,  be  originally 
sufficient,  the  insured  has  done  all  that  he  contracted  to  do,  and  is 
not  responsible  for  flic  subsequent  deficiency  occasioned  by  any 
neglect  or  misconduct  of  the  master  or  crew;  and  this  ])riiKiplo 
prevents  many  nice  and  difhcult  inquiries,  and  causes  a  more  com- 
plete indemnity  to  the  insured,  which  is  the  object  of  the  contract 
of  insurance,  o  Kent,  175.  Abbott  on  Sliipp.  422.  But  see  The 
General  Mutual  Ins.  Co.  v.  Sherwood,  Law  Hep.  (May  No.)  073. 


204  THE   L\vr  OF   siiirriNG. 

the  master  use  all  reasonable  cflbrts  to  obtain  one. 
In  every  well-appointed  port  where  pilots  are  to  be 
had,  a  vessel  arriving  upon  pilot  ground,  is  bound  to 
make  the  approach  carefully.  If  in  the  night,  the 
master  must  hold  out  a  light  for  a  pilot,  and  wait  a 
reasonable  time  for  one,  and  approach  one  if  he  can 
do  it  with  safety.  If  he  attempts  to  enter  the  port 
without  a  pilot,  or  steers  negligently  or  rashly  in 
approaching  the  ground,  when  it  is  unsafe  to  navi- 
gate without  a  pilot,  and  damage  ensues,  the  under- 
writers are  discharged  from  liabilit}^^ 

187.  If,  however,  the  vessel  pass  uninjured  through 
the  dangers,  to  avoid  which  a  pilot  is  usually  em- 
ployed, and  the  loss  happens  at  a  point  beyond 
which  the  pilot's  services  cease  to  be  necessary,  the 
insured  would  be  entitled  to  recover.  This  was  the 
position  taken  by  the  Court  of  Appeals  of  South 
Carolina,  in  the  case  of  M'Mullan  v.  U.  Ins.  Co.^    It 

*  Phillips  V.  Headlam,  2  B.  &  Ad.  384  ;  Bolton  v.  Am.  Ins. 
Co.,  supra;  M'I\Iullan  v.  U.  Ins.  Co.,  1  Rice's  S.  C.  R.  248. 

"  Supra.  See  also,  Kecler  v.  Firemen's  Ins.  Co.,  3  Hill.  R. 
250;  Am.  Ins.  Co.  v.  Ogden,  15  Wend.  532.  Where  a  vessel 
arrived  off  a  harbor  towards  evening,  there  being  indications  of 
bad  weather  during  the  night,  and  the  captain  unahle  to  obtain  a 
pilot,  determined  to  follow  a  pilot-boat  up  the  bay,  and  in  so  doing 
the  vessel  ran  aground;  such  grounding  cannot  be  imputed  to  the 
fault  or  misconduct  of  the  captain.  Whilst  aground,  the  captain 
ordered  the  deck  load,  consisting  of  casks  of  brandy,  to  be  thrown 
overboard.  But  this  being  impossible,  their  heads  were  knocked 
out  to  allow  the  liquor  to  escape  through  the  scuppers.  It  was 
held,  that  such  a  state  of  facts  would  not  sustain  a  charge  of  want 
of  skill,  or  of  misconduct,  against  the  captain ;  and  that  the 
brandy  was  lost  by  "  peril  of  the  sea."  Van  Syckel  v.  Ewing, 
Oabbe's  R.  405. 


OF  THE  CARRIAGE  OF  GOODS.     205 

was  also  considered  by  the  Court,  that  the  employ- 
ment of  a  i^ilot  in  coming  into  or  leaving  a  particu- 
lar port,  is  not  a  part  of  the  seaworthiness  of  the 
vessel.  "  Nothing/'  said  Judge  O'Neall,  in  deliver- 
ing the  opinion  of  the  Court,  "  c^in  enter  into  that 
which  is  not  for  the  whole  voyage.  The  business  of 
a  pilot  is  merely  temporary.  He  is  a  part  of  the 
crew  of  a  vessel  for  only  a  few  miles,  or  a  few  hours. 
He  navigates  her  only  occasionally.  Under  such  cir- 
cumstances, it  would  be  an  abuse  of  terms  to  say 
that  a  competent  pilot  was  necessary  to  make  a  ves- 
sel seaworthy.  The  true  notion  seems  to  me  to  be 
this :  if  a  vessel  without  a  pilot  sustain  injury  in 
entering  or  leaving  a  harbor,  where  it  is  customary 
to  have  a  pilot;  that  then  such  injury  does  not  come 
within  the  perils  insured  against.  It  is  not  a  peril  of 
the  sea;  it  is  a  loss  from  the  bad  navigation  of  the  ves- 
sel, and  is  to  be  set  down  to  the  fault  of  the  master, 
and  consequently  the  owners  would  be  liable  for  it. 
The  general  rule  is,  if  the  owners  would  not  be 
liable  for  the  loss,  that  then  the  insurers  are.''^ 

188.  In  rivers,  roads,  &c.,  where  it  is  not  cus- 
tomary to  take  a  pilot  on  board,  the  captain  or  mate 
being  duly  qualified,  or  any  other  competent  person 
may  be  relied  on.  If,  however,  in  such  a  case,  in- 
jury arises  from  want  oC  ordinary  prudence  in  the 

*  The  position  assumed  in  this  case  is  a  novel  one.  Tt  seems  to 
be  taken  for  granted  in  the  books  of  reports,  and  by  tlie  text  wri- 
ters, that  a  vessel  is  not  seaworthy,  within  the  implied  warranty, 
if  she  proceeds  without  a  pilot,  where  it  is  customary  to  take  one. 
This  is  the  first  and  only  case  that  I  have  been  able  to  find,  where 
a  contrary  doctrine  has  been  laid  down. 


20G  THE    LAW    OF     SHIPPING. 

navic:ation  of  the  vessel,  the  owners  are  liable  to  the 
shippers.' 

ISO.  In  respect  both  to  the  ladnig  and  carriage  of 
the  goods,  the  master  is  chargeable  Mith  tlie  most 
exact  diligence.  His  responsibility  with  respect  to 
them  begins  when  that  of  the  wharfinger  ends,  and 
when  they  are  delivered  to  some  accredited  person 
on  board  the  ship.  If  he  receives  them  at  the  quay 
or  beach,  or  sends  his  boat  for  them,  his  responsibility 
attaches  from  the  moment  of  the  receipt.^  Not  only 
is  the  master  responsible  with  respect  to  the  safety 
and  security  of  the  goods,  but,  as  we  have  had  occa- 
sion elsewhere  to  observe,  the  vessel  is  also  liable. 
It  stands  as  the  shipper's  security,  and  is  by  the  ma- 
ritime law  hypothecated  to  him  for  his  indemnity. 
The  duties  of  the  master  as  carrier  extend  to  all  that 
relates  to  the  lading,  transportation,  and  delivery  of 
the  goods.  And  for  the  faithful  performance  of  those 
duties  the  ship  stands  pledged,  as  well  as  the  master 
and  owners  personally.^ 

190.  The  goods  must  be  safely  stowed  under  deck. 
That  is  the  contract  implied  by  the  bill  of  lading. 
If  they  are  carried  on  deck,  without  the  consent  of 
the  shipper  or  the  sanction  of  custom,  the  carrier  is 
responsible  for  their  safety;  and  if  they  are  lost  from 
the  dangers  of  the  seas,  he  cannot  protect  himself 

'  Keelcr  v.  The  Firemen's  Ins.  Co.,  3  Hill,  R.  250. 

a  The  Waldo,  Davies'  Ad.  R.  IGl ;  3  Kent's  Cora.  206;  Abbott 
on  Shipp.  423  ;  Molloy,  book  2,  chap.  2,  sect.  2;  Roccus,  note  88. 

=»  The  Paragon,  Ware's  R.  322 ;  The  Rebecca,  Id.  188 ;  The 
Waldo,  siqyra. 


OF    THE    CARRIAGE    OF    GOODS.  207 

from  responsibility  by  showing  that  they  were  lost 
or  damaged  from  that  cause.  He  must  go  further, 
and  show  that  the  calamity  would  have  been  equally 
fatal,  even  if  they  had  been  secured  below  deck.  If, 
from  stress  of  weather,  it  becomes  necessary  to  throw 
them  overboard  for  the  common  safety,  this  will  not 
be  a  loss  to  be  divided  with  the  rest  of  the  cargo,  by 
a  general  average,  but  will  be  the  particular  loss  of 
the  master  and  the  ship-owners,  who  are  responsible 
for  his  acts.^ 

191.  The  bill  of  lading  binds  the  master  to  secure- 
and  carry  the  goods  in  the  usual  way,  that  is,  under 
deck.  Where  the  contract  of  affreightment  is  verbal, 
it  will,  in  the  same  manner,  be  presumed  to  be  a  con- 
tract to  stow  and  carry  the  goods  in  the  usual  way, 
unless  a  custom  or  different  agreement  is  proved.  A 
local  custom,  in  order  to  be  binding  on  the  parties, 
and  withdraw  their  contracts  from  the  application  of 
the  common  law,  must  be  so  generally  known  and 
understood  that  it  may  fiiirly  be  presumed  that  all 
persons  engaging  in  that  particular  trade  are  ac- 
quainted with  it  and  assenting  to  it,  as  they  are  pre- 
sumed to  know  the  general  law.  The  presumption 
then  will  be,  that  they  form  their  engagements  with 
a  silent  reference  to  the  special  custom.  And  the 
custom,  to  be  obligatory,  must  not  Ijc  a  loose  prac- 
tice, but  precise,  delinite,  and  certain,  so  as  to  supply 
the  place  of  the  common  law  in  the  given  case,  and 

■  Sec  the  foregoing  autlioritics  and  Abbott  on  Sliipp.  p.  423, 
note  (2).  The  reader  will  find  tlu;  cases,  respecting  ooninicrcial 
usages,  numerously  collected  and  ably  analyzed  in  1  Smith's  Lead- 
ing Cases,  pp.  582,  50.5.     (Last  American  Edition. ) 


208  THE    LAW    UF     SlIli'l'ING. 

be  ciipable  of  being  applied  to  the  contract,  and  de- 
fining and  fixing  the  rights  of  the  parties  under  it. 
Such  a  custom,  when  it  is  established,  and  so  gene- 
rally known  and  recognised  that  parties  are  pre- 
sumed in  their  engagements  tacitly  to  refer  to  it, 
applies  itself  to  the  contract,  and  forms,  as  it  were, 
the  complement  to  the  terms  in  which  the  obligation 
is  expressed  by  the  parties,  and  within  its  proper 
sphere  is  equally  binding  with  the  general  law.' 

192.  If,  however,  there  is  a  written  and  express 
contract,  by  which  the  parties  have  fixed  and  de- 
fined their  obligations  and  duties,  it  cannot  be  con- 
trolled or  varied,  or  contradicted  by  a  usage  or  cus- 
tom; for  that  would  be,  not  only  to  admit  parol 
evidence  to  control,  vary,  or  contradict  written 
agreements,  but  it  would  be  to  allow  mere  presump- 

•  The  Paragon,  Ware's  R.  322 ;  The  Rceside,  3  Sum.  507. 
"  The  true  and  appropriate  office  of  a  usage  or  custom,"  said  Judge 
Story  in  this  case,  "  is  to  interpret  the  otherwise  indeterminate 
intentions  of  parties,  and  to  ascertain  the  nature  and  extent  of 
their  contracts,  arising  not  from  express  stipuLations,  but  from 
mere  implications  and  presumptions,  and  acts  of  a  doubtful  or 
equivocal  character.  It  may  also  be  admitted  to  ascertain  the  true 
meaning  of  a  particular  word,  or  of  particular  words  in  a  given  in- 
strument, when  the  word  or  words  have  various  senses,  some  com- 
mon, some  qualified,  and  some  technical,  according  to  the  subject- 
matter  to  which  they  are  applied.  But  I  apprehend  that  it  can 
never  be  proper  to  resort  to  any  usage  or  custom  to  control  or  vary 
the  positive  stipulations  in  a  written  contract,  and,  a  fortiori,  not 
in  order  to  contradict  them.  An  express  contract  of  the  parties  is 
always  admissible  to  supersede,  or  vary  or  control  a  usage  or  cus- 
tom ;  for  the  latter  may  always  be  waived  at  the  will  of  the  par- 
tics."  See  also  The  AValdo,  Davics'  11.  IGO;  Vcrnard  v.  Hudson, 
3  Sum.  R.  405. 


OF    THE    CARRIAGE    OF    GOODS.  209 

tions  and  implications,  properly  arising  in  the  ab- 
sence of  any  positive  expressions  of  intention,  to  con- 
trol, vary,  or  contradict  the  most  formal  and  delibe- 
rate written  declarations  of  the  parties.'  Hence  it 
is,  that  evidence  is  not  admissiblte  to  vary  the  com- 
mon bill  of  lading,  by  which  the  goods  were  to  be 
delivered  in  good  order  and  condition,  the  danger  of 
the  seas  only  excepted,  by  establishing  a  custom  that 
the  owners  of  packet  vessels,  on  that  particular  route, 
should  be  liable  only  for  damage  to  goods  occasioned 
by  their  own  neglect.^ 

193.  If  there  be  a  clean  bill  of  lading,  that  is,  if  it 
is  silent  as  to  the  mode  of  stowing  the  goods,  and 
contains  no  exceptions  to  the  master's  liability,  but 
the  usual  one  of  the  dangers  of  the  seas,  or  if  there 
be  a  charter-party  in  the  like  form,  the  law  presumes 
that  the  goods  are  to  be  carried  under  deck.  The 
usual,  and  only  safe  mode  of  carrying  goods,  is  under 
deck,  and  when  the  contract  is  entered  into,  it  is" 
presumed  to  be  the  intention  of  the  parties  that  the 
goods  shall  be  stowed  and  carried  in  the  usual  wa3"j 
unless  there  is  a  special  agreement  to  the  contrary. 
This  is  a  condition  that  is  silently  understood  by  the 
parties,  and  implied  by  the  law.  A  bill  of  lading, 
therefore,  imports,  unless  the  contrary  appears  on  its 
face,  that  the  goods  arc  to  be  safely  secured  under 
deck.  And  no  usage  can  be  permitted  to  control, 
vary,  or  contradict  that  meaning.^ 

1  Vcrnard  v.  Ilud.son,  3  .Sum.  11.  405;  Knox  v.  The  Schooner 
Ninctta,  Crahhc's  R.  5.34.  «  Ihid. 

'  The  Waldo,  Davics'  II.  IGO;  Curti.s's  Merchant  Seamen,  213  ; 
The  Ilecsidc,  2  Sum.  322;  Vfrnnrd  v.  Hudson,  3  Sum.  11.  W't ; 
Barber  v.  Urace,  3  Conn.  !). 

11 


210  Tin:   LAW  of   siiirriNG. 

194:.  Tlie  presumption  of  law,  however,  in  such  a 
case  may  be  rebutted,  not  only  by  showing  a  posi- 
tive agreement  between  the  parties  that  the  goods 
are  to  be  carried  on  deck,  but  from  other  circum- 
stances, such,  for  example,  as  the  goods  paying  the 
deck  freight  only.  The  admission  of  proof  to  this 
eflect  is  perfectly  consistent  with  the  rules  of  law ; 
for  it  neither  contradicts  nor  varies  anything  con- 
tained in  the  bill  of  lading ;  but  it  simply  rebuts  a 
presumption  arising  from  the  ordinary  course  of  busi- 
ness/ And  where  goods  are  shipped  under  the  com- 
mon bill  of  lading,  at  an  under-deck  freight,  but  are 
carried  on  deck,  and  finally  delivered  without  damage, 
the  ship-owner  is  entitled  only  to  a  deck  freight.^ 

195.  It  is  then  only  in  the  case  of  a  parol  ship- 
ment, that  the  master  is  allowed  to  show  a  local  cus- 
tom to  carry  goods  on  deck  in  the  particular  trade. 
But  it  must  be  a  custom  so  generally  known  and 
recognised,  that  a  fair  presumption  arises  that  the 
parties  in  entering  into  their  engagement,  did  it  with 
a  silent  reference  to  the  custom,  and  tacitly  agreed 
that  their  rights  and  responsibilities  should  be  deter- 
mined by  it.^ 

196.  If  goods  are  put  on  board  without  the  know- 
ledge of  the  master,  he  may  put  them  ashore.     The 

'  Vernard  v.  Hudson,  supra.  If  the  presumption  of  law  can  be 
rebutted  by  an  inference  arising  from  one  fact,  viz.,  the  payment  of 
half  freight,  why  may  it  not  be  rebutted  by  an  inference  arising 
from  another  fact,  that  is,  the  existence  of  an  established  custom? 

^  Ibid. 

3  The  Paragon,  Ware's  R.  322 ;  Curtis's  Merchant  Seamen, 
svpra. 


OF  THE  CARRIAGE  OF  GOODS.     211 

contract  of  affreightment,  like  all  other  contracts, 
requires  for  its  completion  the  consent  of  parties, 
either  express  or  implied.  In  such  a  case,  therefore, 
there  is  no  contract,  and  consequently  no  obligation 
on  one  part  or  the  other ;  and  hence  the  master,  who 
finds  the  merchandise  in  his  vessel,  may  put  it  ashore, 
and  charge  the  expense  of  unloading  to  the  owner. 
But  if  the  goods  are  not  discovered  until  after  the 
ship  sails,  the  master  may  discharge  them  at  an  in- 
termediate port,  provided  the  vessel  is  overloaded. 
He  is  bound,  however,  to  leave  them  in  a  place  of 
safety,  and  give  the  owner  notice.  If,  on  the  other 
hand,  the  vessel  is  not  overcharged,  he  must  carry 
them  on  to  the  port  of  destination.  These  are  the 
principles  laid  down  by  Pothier  and  Valin,^  "  and 
are  recommended,"  says  Judge  Ware,^  "  as  well  by 

»  Pothier,  Traite  de  Contrat  de  Cbarter-Partie,  No.  10,  12 ;  1 
Valin,  Gil.  Sec  also  Ordonnance  de  la  Marine,  Liv.  3,  Tit.  3,  Art. 
7  ;  Code  do  Commerce,  No.  292. 

^  The  Huntress,  Davies'  R.  82,  90.  The  Huntress  was,  in  the 
strictest  sense  of  the  word,  a  common  carrier,  making  her  trips 
daily  between  Portland  and  Boston.  "  Ilcr  goods  on  freight  were 
owned  by  a  great  variety  of  persons,  were  brought  in  small  quan- 
tities, loaded  in  a  hurry,  ordinarily  without  the  formality  of  a  bill 
of  lading,  and  often,  as  in  this  case,  accompanied  by  their  owners. 
The  owners  of  the  boat,  by  the  nature  of  their  employment,  en- 
gaged, and  wore  bound  to  take  the  goods  of  all  persons  who  offered 
them,  without  any  special  contract  for  that  purpose.  Holding 
themselves  out  generally  as  ready  to  carry  freight  or  passengers, 
the  public  have  a  right  to  take  them  at  their  offer,  and  they  arc 
not  at  liberty  to  refuse  without  good  cause;  and  those  who  wish 
for  a  passage,  or  have  goods  to  be  transported,  need  not  take  the 
trouble  to  make  a  contract  beforehand.  They  understand  that  the 
master  is  bound  to  allow  them  a  pas.sage,  and  to  carry  llicir  mer- 
chandise, unless  lie  has  some  valid  excuse,  and  thry  go  drnvn  to 
the  boat  prepared  to  go  on  board,  and  take  their  goods  with  them. 


212  TUE    LAW    OF    SlIirPING. 

puljlic  conveiiioiice  as  by  their  pure  and  honorable 
morality." 

197.  It  is  the  duty  of  the  shipper  or  owner  of 
goods  to  have  them  properly  marked,  and  present 
them  to  the  carrier  or  his  servants,  to  have  them  en- 
tered in  his  books.  If  he  omits  to  do  this  from  neglect 
or  otherwise,  and  there  is  a  misdelivery  and  loss  in 
consequence,  without  any  fault  of  the  carrier,  he 
must  bear  the  loss.^ 

198.  Nor  is  the  owner  of  the  ship  responsible  for 
any  loss  or  injury  to  the  goods,  if  they  were  brought 
on  board  by  the  master  furtively  and  beyond  the 
scope  of  his  authority,  unless,  indeed,  he  afterwards 
adopts  the  act  of  the  master.'  So,  too,  if  the  shipper 
consigns  his  goods  to  the  master  for  sale  and  returns, 
in  proceeding  to  dispose  of  them,  he  does  not  act 


Now  it  appears  to  me,  that  if  the  goods  arc  put  on  board  in  the 
ordinary  manner,  a  contract  results  from  the  fact  itself.  In  the  pre- 
sent case,  the  owners  of  the  boat  held  themselves  out  as  ready  to 
carry  freight  for  all  persons  generally,  and  if  the  libellant  had  his 
goods  carried  to  the  wharf,  and  they  were  taken  on  board  in  the 
usual  course  of  the  business,  as  other  goods  were,  he  accepted 
their  offer,  and  it  appears  to  me  the  contract  was  complete ;  but  if 
it  was  not,  it  was  ratified  and  made  perfect  by  the  payment  and 
acceptance  of  the  freight."  This  was  the  decision  of  the  Roman 
law.  "  Whether  the  goods,"  says  Ulpian,  "are  shipped  by  a  bill 
of  lading  or  not,  the  contract  is  complete  by  the  simple  fact  that 
they  are  taken  on  board ;  the  carrier  becomes  responsible  for  their 
safety."  But  this  must  be  understood  of  goods  put  on  board  in 
the  usual  way,  and  not  clandestinely  or  furtively.  See  post,  Tit. 
"■  Conveyance  in  a  General  Ship." 

*  Ibid. 

2  Walter  v.  Brown,  11  Mass.  R.  99. 


OF  THE  CARRIAGE  OF  GOODS.     213 

under  any  authority  derived  from  liis  appointment 
as  master,  but  in  an  entirely  new  character,  that  of 
supercargo  or  factor.  And  his  duties  and  KabiUties 
under  these  two  characters  are  as  distinct  and  inde- 
pendent as  they  would  be  if  the  trusts  were  confided 
to  different  persons.  In  all  that  relates  to  the  trans- 
portation of  the  goods  and  navigation  of  the  ship,  he 
acts  as  master,  and  all  that  he  does  in  relation  to 
the  disposition  of  the  merchandise,  is  referred  to  his 
character  as  factor.  His  acts  are  imputable  to  the 
ship-owners  only  so  far  as  he  acts  as  master.  Their 
responsibility  does  not  go  beyond  that  limit.^  A& 
consignee,  the  master  neither  represents  the  vessel 
nor  its  owners.  And  for  any  want  of  fidelity  in  that 
trust,  his  employers  have  the  same  remedy  against 
him  as  they  would  have  against  any  other  person, 
and  no  other.  As  the  ship-owners  are  not  liable  in 
personam,  neither  is  the  vessel  liable  in  rem.^ 

199.  Where  there  is  a  usage  well  known  and 
established,  not  only  as  to  the  manner  of  stowage, 
but  as  to  the  different  articles  and  products  to  be 
stowed  together, — such,  for  instance,  as  the  stowage 
of  barrels  of  flour  and  bags  of  corn  upon  the  top  of 
hogsheads  of  sugar, — both  the  carrier  and  the  shipper 
are  bound  by  it.  Tlic  carrier  is  bound  to  stow  in 
the  accustomed  manner,  and  tlie  shipi)er  is  charge- 
able with  notice  that  his  goods  will   l)e  thus  stowed. 

«  The  Walflo,  Davios'  R.  100;  Williams  v.  Nichols,  13  Wend. 
R.  58.  Sf.c  also  K«-iTip  V.  Caughty,  llJoliu.  11. 107  j  Emory  v.  Hor- 
sey, 4  Grocnl.  407. 

'The  Waldo,  sujjra. 


214  THE     LAAV    OF     SHirriNG. 

If  he  wishes  them  stowed  in  a  diflerent  inaiiiier,  he  is 
bound  to  give  the  requisite  instructions.  If  he  gives 
no  special  instructions,  and  his  goods  are  stowed  in 
accordance  with  the  usage,  he  is  deemed  to  have 
assented  to  the  mode  of  stowage,  and  cannot,  in  case 
his  goods  are  injured  on  the  voyage  in  consequence 
of  the  mode  of  stowage,  set  that  up  as  a  ground  of 
complaint,  or  as  a  foundation  for  depriving  the  owners 
of  the  vessel  of  their  freight.' 

200.  In  the  absence  of  any  established  usage  as  to 
the  manner  of  stowing  goods,  or  as  to  the  different 
articles  to  be  stowed  together,  it  is  nevertheless  the 
duty  of  the  master  so  to  stow  and  arrange  the  dif- 
ferent articles  of  which  the  cargo  consists,  that  they 
may  not  be  injured  by  each  other  or  by  the  motion 
or  leakage  of  the  ship.'  If  damage  arises  from  bad 
stowage  or  cooperage,  the  ship  is  responsible  for  it. 
Thus,  where  a  ship  sailed  from  New  Orleans  for  New 
York,  with  a  cargo  of  tobacco  in  hogsheads,  and  lard 
in  barrels,  and  when  seventeen  days  out,  without 
having  met  any  very  rough  weather,  lard  was 
pumped  from  her,  and  the  tobacco  damaged  by  the 
lard  running  into  it,  it  was  held,  that  the  damage 
was  occasioned  by  some  cause  other  than  the  perils 
of  the  sea,  such  as  bad  stowage  or  cooperage,  and 
the  ship  was  liable  for  it.  It  was  also  held,  that  if, 
under  such  circumstances,  a  peril  of  the  sea,  subse- 


'  Baxter  v.  Lcland,  Blatchford's  R.  526 ;  Barber  v.  Bruce,  3 
Conn.  9. 

"^  Abbott  on  Shipp.  425 ;  Swainston  v.  Garrick,  Law  Journal,  N. 
S.  vol.  2,  255 ;  The  Newark,  Blatchf.  R.  203 ;  The  Recside,  2 
Sum.  567. 


OF  THE  CARRIAGE  OF  GOODS.     215 

quent  to  the  first  pumping  of  tlie  lard,  and  wliolly 
unconnected  with  the  fault  of  the  carrier  in  the  de- 
fective stowage  or  cooperage  of  the  lard,  is  set  up  as 
the  cause  of  the  damage,  the  evidence  should  be  clear 
and  undoubted  in  order  to  exonerate  the  carrier  from 
liabiUty.' 

201.  If  by  usage  or  agreement,  the  stowage  of  the 
cargo  is  to  be  performed  by  persons  hired  by  the 
shipper,  or  if  the  shipper  appoints  his  own  stower, 
the  master  is  exonerated  from  his  liability.  And  if  the 
freighter,  by  a  verbal  agreement  with  the  owner,  under- 
takes to  appoint  his  own  stower,  and  he  acts  as  such, 
the  mere  silence  of  the  charter-party,  subsequently 
entered  into,  does  not  sulyect  the  master  to  his  ori- 
ginal liability.^    "  The  master,"  says  Lord  Lyndhurst, 

'  The  Newark,  ^upra  ;  see,  also,  The  Reeside,  supra.  It  was 
held,  in  this  latter  case,  that  the  mere  rolling  of  a  vessel  by  a  cross 
8ca  is  not  a  danger  of  the  sea  that  will  excuse  the  carrier.  "  Bad 
stowage,"  says  Mr.  Curtis,  "  may  be  either  from  an  improper  and 
defective  arrangement,  so  that  the  goods  arc  damaged  by  contact 
or  by  the  leakage  of  the  vessel ;  or  from  taking  on  board  goods 
packed  or  coopered  improperly,  such  as  oil  or  vitriol,  whereby 
other  goods  are  injured  through  a  leakage  of  the  casks,' occasioned 
by  any  stress  of  weather  that  is  not  fairly  within  the  meaning  of 
'  perils  of  the  seas.'  These  defects  the  master  undertakes  by  his 
contract,  whether  written  or  verbal,  to  provide  against;  and  the 
meaning  of  the  exception,  'perils  of  the  seas,'  which  is  ordinarily 
introduced  into  bills  of  lading,  and  which  the  law  implies,  in  the 
absence  of  a  written  contract,  includes  only  those  injuries  occa- 
sioned by  some  irresistible  force,  or  some  overwhelming  power, 
which  cannot  be  guarded  against  by  the  ordinary  exertions  of 
human  .'•kill  and  prudence."  IMcrrliant  Seamen,  213,  214  ;  see  the 
recent  cases  of  Clark  v.  Barnwell,  12  How.  It.  273,  and  llich  v. 
Lambert,  Id.  347. 

»  Swainston  v.  Tiarrick,  stijira. 


216  THE     LAAV    OF    SlIIl'l'ING. 

"  as  servant  of  the  owner,  is  bound  to  superintend 
the  stowage,  and  if  in  consequence  of  improper  stow- 
age the  owner  has  been  called  upon,  and  has  satisfied 
any  claim  for  damages,  the  master  is  liable  to  him. 
But  where  the  master  is  told  by  the  owner,  that 
some  one  will  come  to  superintend  and  do  that, 
which  would  otherwise  be  his  duty,  he  is  exonerated. 
If  afterwards  that  intention  is  changed,  the  owner 
should  communicate  it  to  the  master."^ 

202.  If  the  goods  are  stowed  according  to  the 
usage,  or  if  the  shipper  is  warned  as  to  the  mode  of 
stowing,  damages  cannot  be  recovered  for  any  injury 
occasioned  by  bad  stowing.^  The  usage  of  trade  is 
to  carry  salt  between  decks,  and  the  master  is  not 
culpable  for  stowing  it  in  that  way,  if  he  takes  good 
care  to  stow  and  pack  it  well,  and  secure  it  with 
proper  dunnage.  When  this  is  done,  and  damage  is 
occasioned  by  the  drainage  of  the  salt  coming  in  con- 
tact with  sea  water,  shipped  from  the  violence  of  a 
storm,  or  stress  of  weather,  it  will  be  attributed  to  a 
peril  of  the  sea,  and  the  carrier  is  exonerated.  Where 
the  injury  to  the  goods  is  of  such  a  nature,  that  it 
must  necessarily  have  accrued  in  the  course  of  the 
voyage,  the  onus  prohandl  is  upon  the  carrier,  in 
order  to  excuse  himself,  that  it  Avas  occasioned  by 
one  of  the  perils  of  navigation  within  the  exception 
in  the  bill  of  lading.  If  he  shows  that  the  damage 
was  occasioned  by  the  effect  of  humidity  and  damp- 
ness, which  in  the  absence  of  any  defect  in  the  shij^, 

>  Swainston  v.  Garrick,  svpra. 

2  Major  V.  White,  7  Carr.  k  P.  41 ;  Barber  v.  Bruce,  3  Conn. 
9 ;  Baxter  v.  Lcland,  Blatcbf.  R.  520. 


OF  THE  CARRIAGE  OF  GOODS.      217 

or  navigation  of  the  same,  or  in  the  stowage,  is  one 
of  the  dangers  and  accidents  of  the  seas,  then  he  is 
not  liable.^  We  may  here  observe,  that,  at  common 
law,  if  a  person  ship  goods  on  board  a  vessel,  know- 
ing that  it  is  chartered,  the  consignee  of  the  goods 
can  maintain  no  action  against  the  owner  of  the  ship, 
if  the  goods  be  injured  by  bad  stowage.^  But  in 
Admiralty,  the  ship  is  specifically  liable,  no  matter 
whether  let  by  a  charter-party  or  not,  and  equally 
so,  whether  the  shipper  knows  that  she  is  chartered 
or  is  ignorant  of  the  fact. 

t 

203.  It  is  in  all  cases  the  duty  of  the  master  to 
provide  ropes,  &c.,  proper  for  the  actual  reception  of 
the  goods  into  the  ship,  and  for  their  safe  unlading. 
He  is  responsible  for  the  sufficiency  of  the  tackle 
which  he  uses.  If  the  goods,  a  cask,  for  instance,  is 
accidentally  staved  in  letting  it  down  into  the  hold 
of  the  ship,  or  in  unlading  it,  the  master  must  an- 

'  Rich  V.  Lambert,  12  IIow.  U.  S.  R.  347 ;  Clark  v.  Barnwell, 
Ibid.  272.  If  the  damage  has  proceeded  from  an  intrinsic  prin- 
ciple of  decay,  naturally  inherent  in  the  commodity  itself,  whether 
active  in  every  situation,  or  only  in  the  confinement  or  closeness 
of  the  ship,  the  merchant  must  bear  the  loss  as  well  as  pay  the 
freight;  as  the  master  and  owners  arc  in  no  fault,  nor  does  their 
contract  contain  any  insurance  or  warranty  against  such  an  event. 
Abbott  on  Shipping,  517  ;  12  East,  381  ;  4  Campb.  119  ;  ()  Taunt. 
05.  But  if  it  can  be  shown  that  it  iniglit  have  been  avoided  by 
the  use  of  proper  precautionary  measures,  and  that  the  usual  and 
customary  mcthodM  fur  this  purpose  have  been  neglected,  they  may 
still  bo  held  liable.  And  the  same  rule  applies  in  the  case  of  da- 
mage, on  account  of  the  humidity  and  dampness  of  the  ship,  which 
is,  more  or  less,  incident  to  all  vessels  engaged  in  trade  or  naviga- 
tion, especially  upon  the  high  seas.     Clark  v.  Barnwell,  siqmt. 

*  Major  V.  White,  supra. 


218  .    THE   LAW  OF   siurriNG. 

swer  lor  the  los,>^.'  So,  too,  he  must  furnish  the  ship 
uith  proper  dunnage  (pieces  of  wood  pUiced  against 
the  sides  and  bottom  of  the  hold)  to  preserve  the 
cargo  from  the  effects  of  leakage,  according  to  its 
nature  and  quality.^ 

20-1.  More  goods  must  not  be  taken  on  board  than 
the  ship  can  conveniently  carry,  leaving  room  for 
her  own  furniture  and  provisions  of  the  crew,  and 
for  the  proper  working  of  the  vessel.  If  the  master 
does  so,  he  and  his  owners  would  be  liable  for  the 
consequent  damage.  If  he  agrees  with  a  shipper 
that  he  will  take  in  only  a  certain  cargo,  and  vio- 
lates his  contract,  he  assumes,  it  has  been  held,  the 
risk  and  responsibility  of  an  insurer.  Thus  in  the 
case  of  The  Schooner  Ninetta,'  grain  was  shipped  on 
board  the  vessel,  on  condition  that  no  other  cargo 
should  be  taken,  and  that  it  should  be  carried  di- 
rectly to  the  port  of  destination,  without  deviation. 
The  master  however  deviated,  and  took  in  additional 
cargo.  It  was  alleged,  that  in  consequence  the  grain 
was  damaged.  "  The  greatest  difficulty  I  have  had 
in  this  case,"  said  Judge  Randall,  "has  been  to  de- 
termine whether  this  damage  was  occasioned  by  the 
fault  or  improper  conduct  of  the  captain,  in  putting 
into  the  Piankitank ;  but  when  I  reflect  that  this 
was  in  violation  of  an  express  contract  with  the 

'  Abbott  on  Sbipp.  42.5 ;  see  Mott  v.  Laraway,  14  Wend.  225. 

2  Abbott,  supra.  lie  cites  Ordin.  of  Hotterdam,  2  Magcns,  101, 
art.  125,  12G. 

3  Crabbe's  R.  534;  see  also  Crosby  v.  Fitcb,  12  Conn.  410; 
Davis  V.  Garrett,  G  Bing.  716.  The  reader  will  find  the  question 
adverted  to  in  the  text,  more  fully  considered  in  the  chapter  upon 
the  Carrier's  Responsibility,  post,  chap.  12. 


OF    THE    CARRIAGE    OF    GOODS.  219 

shipper,  who  was  put  to  considerable  trouble  and  ex- 
pense in  order  to  obtain  the  exclusive  use  of  the  ves- 
sel, I  think  the  party  who  violates  such  a  contract, 
and  takes  in  additional  cargo  without  the  consent  of 
the  first  shijDper,  assumes  the  risk  and  resj^onsibility 
of  an  insurer,  and  should  be  liable  for  any  loss  that 
may  afterwards  occur."  But  this  position  has  been 
questioned,  and  the  authorities  are  in  conflict.  As- 
sumpsit was  brought  in  the  District  Court  of  Phila- 
delphia for  the  recovery  of  the  same  freight  that  was 
libelled  for  in  the  Admiralty.  There  w^as  an  appeal 
from  the  decree  in  the  Admiralty  to  the  Circuit 
Court.  While  the  appeal  was  pending,  the  cause 
came  on  for  trial  in  the  District  Court  of  Philadel- 
phia, and  the  verdict  was  for  the  plaintifl'.  Upon  a 
writ  of  error  from  the  District  Court,  it  was  held  by 
the  Supremo  Court  of  Pennsylvania,  that  a  decree  in 
Admiralty  appealed  from,  could  not  be  pleaded  as  a 
former  recovery,  and  also,  that  an  unnecessary  de- 
viation, and  injury  ensuing  to  the  cargo,  is  no  de- 
fence to  an  action  for  freight,  except  so  far  as  the 
loss  was  occasioned  ]jy  the  deviation,  and  that  where 
the  master  of  a  vessel  who  has  contracted  to  carry 
no  other  cargo,  and  in  violation  of  his  contract  takes 
additional  cargo,  an  injury  ensuing  is  no  defence, 
except  so  far  as  the  damage  resulted  from  the  breach 
of  contract.' 

The  master  must  not  take  on  l)oard  any  contra- 
band goods,  wliereby  the  sliip  and  other  parts  of  the 
cargo  may  be  liable  to  forfeiture  or  detention.-     A 


«  Soutcr  V.   Bayniorc,  7  IJarr,  415;  sec  also  Hart  v.  Allen,  2 
Watts's  11.  Ill;  Hood  V.  Diok,  8  Watts,  480. 
'  Abbott  on  Sliipping,  p.  425. 


220  THE   LA"\r  OF   siiirriNG. 

cliartor-party,  by  which  the  owner  agrees  to  receive 
on  board  "  all  such  lawful  goods  and  merchandise" 
as  the  charterers  "  think  proper  to  ship,"  for  a  cer- 
tain sum,  to  be  "  in  full  for  the  entire  capacity  of 
the  ship  out  and  home,"  must  be  construed  in  con- 
formity to  the  principles  of  law,  with  respect  to  the 
lading  of  a  vessel.' 

205.  The  stipulation  to  receive  all  such  lawful 
goods  as  the  defendant  offers  to  put  on  board  is  an 
ordinarj' one  in  the  printed  forms,  and  refers  to  their 
kind  and  quality,  rather  than  to  their  amount  and 
quantity.  If  lawful,  that  is,  if  not  contraband,  nor 
diseased,  they  are  to  be  received,  whether  heavy  or 
light,  bulky  or  compact,  agreeable  or  disagreeable. 
This  is  the  reasonable  signification  applicable  to  such 
a  stipulation.  If  another  interpretation  were  adopted, 
and  the  owners  were  subjected  to  receive  any  quan- 
tity of  goods,  however  heavy,  which  the  shippers 
might  choose  to  offer,  the  vessel  might  be  so  over- 
loaded with  heavy  articles  as  to  sink  at  her  anchor- 
age, before  she  was  filled,  or  go  down  in  the  first 
gale,  which  would  involve  the  absurdity,  that  the 
parties  agreed  to  the  insertion  of  a  clause,  and  that 
an  ordinary  one,  with  a  meaning  attached  to  it, 
which  would  be  likely  to  produce  at  times  a  total 
loss  of  both  vessel  and  cargo.^ 

20G.  The  proper  limitation  and  signification  of  the 


'  Weston  V.  Minot,  3  W.  &  M.  R.  43G. 

»  Ibid,  supra ;  Jacobson's  Sea  Laws,  p.  94,  and  note ;  sec, 
also,  Micheson  v.  Xicoll,  19  L.  T.  229;  S.  C.  American  Law  Reg. 
49. 


OF  THE  CARRIAGE  OF  GOODS.     221 

words,  "entire  capacity"  of  the  vessel,  are,  lier  en- 
tire capacity  without  danger  to  her  safety.  This 
construction,  in  case  of  light  goods,  might  fill  her 
entirelj-,  without  such  danger,  and  without  making 
her  too  deep,  whereas,  in  case  of  very  compact  and 
heavy  goods,  if  filled  entirely,  she  might  be  so  deep 
as  probably  to  sink  in  the  first  gale  or  strong  swell. 
The  place  and  season,  when  and  where  the  voyage 
is  to  be  performed,  the  ordinary  depth  of  loading  ves- 
sels of  her  size,  tonnage,  shape,  and  draft,  when  em- 
ployed in  the  particular  trade,  are  some  of  the 
elements  to  be  considered  in  forming  a  correct  judg- 
ment what  a  vessel  can  carry  safely.  Whether 
there  is  an  express  agreement  in  the  charter-party, 
that  the  vessel  shall  receive  no  more  than  she  can 
safely  carr}-  or  not,  is  immaterial,  for  the  law  will 
imply  that.' 

*  Weston  V.  Minot,  supra.  Sec  also,  Hunter  v.  Fry,  2  Barn.  & 
Aid.  421.  "  It  is  usual  for  the  master  or  mate,"  says  Mr.  Abbott, 
Sliippini,',  p.  424,  "■  to  sign  a  receipt  for  goods  at  the  time  of  the  ship- 
ment, and  deliver  it  to  the  shipper.  AVheu  this  is  done,  the  master 
must  take  care  not  to  deliver  a  bill  of  lading  until  a  receipt  is  returned 
to  him  ;  for  otherwise  he  may  place  himself  under  a  twofold  respon- 
sibility; a  responsibility  to  the  shipper,  in  case  he  shall  require 
the  goods  to  be  delivered  to  his  own  order,  and  have  a  legal  right 
to  do  so;  and  a  responsibility  to  a  holder  of  the  bill  of  lading, 
who  may  be  induced  to  purchase  the  goods  on  the  faith  of  it.  And 
if  such  a  receipt  is  rcfjuircd,  it  ought  to  bo  given,  and  if  not  given, 
still  the  master  must  take  care  not  to  deliver  a  bill  of  ladinu  to 
any  person  but  the  shipper  without  his  orders,  for  if  lie  does,  ho 
may  incur  a  twofold  responsibility  in  the  same  way,  as  if  the  rc- 
quircfl  receipt  had  been  given."  lie  cites  the  following  authori- 
ties:  Craven  v.  llyder,  0  Taunt.  4^.'},  2  Marsh,  127;  Ilawes  v. 
Watson,  2  JJ.  k  C.  010  ;  Buck  v.  Uatlicld,  5  JJ.  k  A.  (;:;2. 

With  respect  to  overlading  the  ship,  Mr.  Lawes,  in  his  work  on 
Chartcr-Partics,  p.  37,  observes  as  follows  :  "It  is  said  by  Malyne, 


222  THE   LAAV   OF   siiirriNG. 

207.  In  respect  to  contriibaiid  goods  and  the  ship's 
docunieiits,  it  will  be  necessary  to  examine  the  ge- 

in  his  chapter  on  affreightracnt  by  charter-party,  that  if  the  master 
take  on  board  more  hiding  than  the  acknowledged  burden  of  the 
ship,  especially  if  it  consist  of  other  persons'  goods  than  the 
freighters,  he  loses  his  whole  freight,  for  by  this  he  may  endanger 
the  merchant's  goods  which  he  has  contracted  to  carr}';  and  in 
such  case,  if  any  part  of  those  goods  are  cast  overboard  in  a  storm, 
the  loss  shall  not  be  made  up  by  contribution  or  average  of  the 
merchant,  but  by  the  master's  own  purse.  Mai.  99.  Malyne  also 
further  lays  it  down,  that  if  any  man  compel  the  master  to  over- 
burden the  ship  or  boat,  he  may  be  accused  criminally,  besides 
being  compelled  to  pay  the  damages  happening  thereby.  Id. 
Nearly  to  the  same  effect,  Beawes  observes,  that  if  the  master  lets 
out  his  ship,  and  afterwards  secretly  takes  in  other  goods  unknown 
to  the  first  freighter,  by  the  law  marine,  he  loses  his  freight;  and 
if  it  so  happen  that  any  of  the  freighter's  goods,  for  safety  of  the 
ship,  be  cast  overboard,  the  rest  shall  not  become  subject  to  the 
average,  but  the  master  must  make  the  damage  good ;  though  (ac- 
cording to  Beawes),  if  the  goods  be  brought  into  the  ship  secretly 
and  unknown  to  him,  it  is  otherwise.  Beawes,  137.  The  obser- 
vations of  both  these  writers  seem  to  be  founded  upon  one  of  the 
laws  of  Wisby,  which  provides,  that  the  ship  being  laden,  the 
master  must  not  take  in  any  more  goods  without  the  merchant's 
leave ;  and  if  he  fails  therein,  in  case  there  be  casting  of  the 
goods  overboard,  he  shall  be  a  loser  by  so  much  more  commodities 
as  he  has  taken  on  board  over  and  above  what  he  ought.  There- 
fore, upon  the  lading  of  the  ship,  he  ought  to  declare  his  intention 
to  take  such  and  such  goods.  Leg.  Wis.  40.  But  though  this 
seems  to  be  the  marine  law  upon  the  subject,  the  rule  of  the  com- 
mon law,  in  the  absence  of  any  express  provision  in  the  charter- 
party  on  the  subject,  in  analogy  to  other  cases,  seems  to  be  this  : 
that  if  the  master  overloads  the  ship  by  putting  on  board  more 
than  she  can  reasonably  stow  and  carry,  over  and  above  her  tackle, 
&c.,  by  which  a  damage  happens  to  the  freighter,  his  so  doing 
would  be  a  breach  of  the  implied  covenant  in  the  charter-party, 
not  to  do  so,  by  the  words,  '  that  he  will  load  and  stow  all  such 
goods  as  shall  be  sent  alongside,  not  exceeding  what  the  ship  can 
reasonably  stow  and  carry,'  "  &c. 


OF    THE    CARRIAGE    OF    GOODS.  223 


neral  doctrines  of  foreign  Courts.  I  shall  do  this  as 
brief!}-  as  consists  with  the  requisite  particularity. 
A  neutral  nation  has  nothing  to  do  with  the  war  be- 
tween belligerents,  and  is  under  no  moral  obligation 
to  abandon  or  abridge  its  trade.  But  on  the  other 
hand,  that  law  which  coerces  the  action  of  nations 
as  well  as  individuals,  the  law  of  necessity,  gives  to 
the  powers  at  war,  the  right  to  seize  and  confiscate 
such  goods  as  the  law  of  nations  deems  to  be  contra- 
band. And  this  they  may  do  upon  a  principle  of 
self-defence.  But  as  has  been  justly  observed,  the 
right  of  the  hostile  power  to  seize,  does  not  destroy 
the  right  of  the  neutral  to  transport.  A  trade  by  a 
neutral,  therefore,  in  articles  contraband  of  war,  is  a 
lawful  trade,  though  a  trade  from  necessity,  subject 
to  inconvenience  and  loss.^ 

208.  As,  therefore,  a  trade  in  contraband  goods  is 

>  Seton  V.  Low,  1  John.  Cas.  1.  In  this  case,  which  was  an 
action  on  a  policy  of  insurance,  it  was  held,  that  articles  contra- 
band of  war  were  lawful  goods,  within  the  meaning  of  the  policy, 
that  goods  not  prohibited  by  the  positive  hiw  of  the  country  to 
which  the  vessel  belongs,  arc  lawful ;  and  that  the  insured  are  not 
bound  to  disclose  to  the  insurer,  that  the  goods  insured  are  contra- 
band of  war.  See  to  the  same  effect,  Barker  v.  ]Jlakes,  9  East, 
283.  But  in  Ivichardson  v.  Maine  Ins.  Co.,  G  Mass.  102,  it  was 
held,  that  if  goods  contraband  of  war  are  on  cargo,  the  insurer  is 
not  responsible  for  their  capture  and  condemnation  on  that  ac- 
count, unless  cither  with  a  full  knowledge  of  the  nature  of  the 
gf)ods,  and  of  the  voyage,  or  by  an  express  undertaking,  he  shall 
insure  them  against  such  capture.  And  the  .same  doctrine  will  be 
found  in  the  Hubscquent  cases  in  the  same  volume  of  Reports,  pp. 
122,  121,  277.  IJut  sec  Juhel  v.  Khitirlander,  2  John.  C,ns.  121, 
S.  C.  487  ;  Skidmorc  v.  Dordoity,  2  John.  ('as.  77  ;  I'liillips  r.n 
Ins.,  vol.  i.  100,  ct  acq.;  The  8antissima  Trinidad,  7  Wheat.  283. 


22-4  TUE    LAAV    OF    SHIPPING. 

not  prohibited  bv  the  law  of  nations  to  a  neutral,  it 
follows  that  such  trade  is  lawful,  and  being  so,  the 
insured  is  not  bound  to  disclose  to  the  insurer,  that 
the  goods  insured  are  contraband  of  war.^  Mr.  Jus- 
tice Story,  in  his  last  edition  of  Abbott  on  Shipping, 
proposes  a  question,  which  would  seem  to  be  solved 
by  the  foregoing  principle.^  The  question  is  this  : 
when  contraband  goods  are  taken  on  board  with  the 
consent  of  the  owner  of  the  ship,  how  far,  if  they 
should  subject  the  other  innocent  shippers  to  deten- 
tion or  expenses,  the  owner  of  the  ship  would  be 
liable  to  them  in  damages.  That,  he  observes,  may 
depend  eventually  upon  the  consideration,  whether 
there  be  any  implied  warranty  on  the  part  of  the 
ship-owner,  that  no  contraband  goods  shall  with  his 
knowledge  be  j^ut  on  board.  If  indeed  any  loss 
occur  by  the  wrongful  act  of  the  master  or  owner  in 
the  course  of  the  voyage,  as  in  case  of  fraudulent 
conduct  in  case  of  capture,  &c.,  the  shij)per  is  entitled 
to  an  indemnity.  But  the  point  here  is,  whether  in 
a  shipment  in  a  general  ship,  the  ship-owner  takes 
any  risk  as  to  any  part  of  the  cargo  being  contra- 
band or  not,  or  the  shi^oper  takes  that  risk  on  him- 
self. 

209.  If  the  principle  that  governs  in  analogous 
cases,  that  is  to  say,  in  cases  of  insurance,  is  appli- 
cable to  the  relation  between  the  carrier  and  the 

>  Authorities  the  same  as  in  the  foregoing  note. 

'*  Page  426.  The  term  contraband  originated  during  the  Cru- 
sades, when  the  Genoese  and  Venetians  conveyed  munitions  of 
war  and  necessaries  to  the  Saracens ;  and  the  Pope  placed  those 
who  engaged  in  the  trade  under  the  hann.  Thus  it  was  a  trade 
contra  baijnum.     Jacobsou's  Sea  Laws,  p.  97. 


OF  THE  CARRIAGE  OF  GOODS.     225 

shipper,  and  we  apprehend  that  it  is,  then  the  car- 
rier is  exonerated  from  any  loss  that  may  occur  to  a 
shipper,  from  a  part  of  the  cargo  being  contraband. 
His  taking  contraband  goods  on  board  is  Lawful. 
The  shipper  knows  or  is  presumed  to  know  that  fact. 
He  takes  his  choice  of  shipping  his  goods  in  company 
with  such  a  cargo,  or  putting  them  on  board  some 
other  vessel.  He  voluntarily  does  that  which  may 
subject  him  to  loss  or  inconvenience,  and  he  must 
abide  the  result  of  his  own  conduct.  But  Roccus 
determines  otherwise  in  the  case  of  prohibited  arti- 
cles, and  justl}',  for  in  that  case  it  is  unlawful  to  put 
them  on  board. ^ 

210.  The  capture  of  contraband  goods  on  board 
a  neutral  ship,  does  not  affect  other  innocent  goods 
on  board,  unless  they  belong  to  the  same  owner.     To 

*  Note  7G.  The  case  of  prohibited  articles  is  widely  different 
from  contraband.  In  the  former  case,  the  prohibition  makes  the 
trade  absolutely  unlawful,  and,  therefore,  the  master  is  culpable, 
if  he  takes  on  board  prohibited  goods  which  may  subject  the  inno- 
cent part  of  the  cargo  to  confiscation  or  inconvenience.  lie  is 
justly  held  liable  for  any  injury  that  may  result  fi-om  so  doing. 
In  the  latter  case,  the  trade  is  not  unlawful,  and  for  the  reasons 
stated  in  the  text,  we  do  not  think  the  master  culpable,  and  there- 
fore liable  for  consequent  loss  or  injury  to  the  innocent  portion  of 
the  cargo,  from  engaging  in  such  trade.  But  Slracxha  holds  the 
opposite  doctrine.  "  If  a  .ship,"  he  says,  "has  been  detained  and 
prevented  from  performing  her  voyage  by  tlic  fault  of  the  master, 
as  for  instance,  '/ he  luid  contruhand  goods  on  hoard,  hr.  is  respon- 
sible to  Oie  frritjhtcr  or  shipper.  For  it  is  but  justice  that  he  who 
committed  the  fault  should  suffer  the  loss."  Stracehn,  Part  3,  de 
Nnvibnsj  §  25,  p.  420.  It'  the  view  we  have  taken  (if  the  subject 
ia  correct,  then  the  master  is  not  in  ddidOf  and,  therefore,  not 
justly  chargeable. 

15 


22C)  TllK     LAA\'    OF    SHIP  PING.    . 

escape  from  the  contagion  of  contraband,  the  inno- 
cent articles  must  be  the  property  of  a  difi'erent 
owner.'  The  ordinary  rule  of  Prize  Courts  extends 
the  penalty  of  contraband  to  all  the  property  of  the 
same  owner,  involved  in  the  same  unlawful  transac- 
tion. This  rule  of  course  involves  the  ship  in  the 
penalty  of  contraband,  as  well  as  the  innocent  por- 
tion of  the  cargo,  whenever  the  ownership  of  the 
whole  propert}^,  including  the  contraband,  which 
works  the  condemnation,  is  vested  in  the  same 
person  .- 

211.  When,  however,  the  contraband  goods  be- 
long to  a  part  owner  of  the  ship,  the  contraband 
penalty,  or  rather  the  penalty  of  contraband,  affects 
only  the  interest  of  the  part  owner  in  the  ship.  His 
co-tenants  are  not  affected.     When  the  tainted  goods 

'  The  Staadt  Embden,  1  Rob.  Ad.  R.  26. 

2  The  Sarah  Christina,  Ibid.  237  ',  The  Neutralitet,  3  Rob.  295. 
"  The  modern  rule  of  the  law  of  nations,"  observed  Sir  W.  Scott, 
in  this  case,  *'is  certainly,  that  the  ship  shall  not  be  subject  to 
condemnation  for  carrying  contraband  articles.  The  ancient  prac- 
tice was  otherwise,  and  it  cannot  be  denied  that  it  was  perfectly 
defensible  on  every  principle  of  justice.  If  to  supply  the  enemy 
with  such  articles  is  a  noxious  act  with  respect  to  the  owner  of  the 
cargo,  the  vehicle  which  is  instrumental  in  effecting  that  illegal 
purjiose  cannot  be  innocent.  The  policy  of  modern  times  has, 
however,  introduced  a  relaxation  on  this  point;  and  the  general 
rule  now  is,  that  the  vessel  does  not  become  confiscable  for  that 
act.  But  this  rule  is  liable  to  exceptions.  When  a  ship  belongs 
to  the  owner  of  the  cargo,  or  when  the  ship  is  going  on  such  ser- 
vice, under  a  false  destination,  or  false  papers  :  these  circurastance,s 
of  aggravation  have  been  held  to  constitute  excepted  cases  out  of 
the  modern  rule,  and  to  continue  them  under  the  ancient  one." 
See  also,  The  Jonge  Tobias,  1  Rob.  Ad.  R.  329. 


OF  THE  CAERIAGE  OF  GOODS.      227 

are  unclaimed  by  their  owner,  who  is  known  by  the 
ship's  papers,  or  other  sufficient  evidence,  to  be  part 
owner  of  the  ship,  both  will  be  condemned,  that  is, 
both  the  goods  and  the  part-ownership.^ 

212.  Goods  contraband  of  war  are  of  two  descrip- 
tions :  munitions  of  war,  the  property  of  a  neutral, 
bound  from  a  neutral  port  to  the  territory  of  either 
of  the  belligerents,  after  the  existence  of  the  war  is 
known ;  and  every  species  of  neutral  goods,  l^ound 
from  a  neutral  port  to  a  port  belonging  to  either  of 
the  powers  at  war,  and  known  to  be  blockaded  hy 
the  other  power.  The  principle,  therefore,  on  which 
a  belligerent  will  capture  and  condemn  as  prize  the 
goods  of  a  neutral,  bound  to  a  port  known  by  him 
to  be  blockaded,  arises  from  the  consideration,  that 
all  such  goods  are  contraband  of  war.^ 

*  The  Jonge  Tobias,  sujtra. 

=  Ilichardson  v.  Maine  Ins.  Co.,  G  Mass.  102.  It  is  a  well-esta- 
blished rule,  that  a  neutral  carrier  of  enemy's  property  is  entitled 
to  his  freight.  ]5ut  to  this  rule  there  arc  many  exceptions.  If 
the  neutral  be  guilty  of  fraudulent  or  unneutral  conduct,  or  has 
interposed  himself  to  assist  the  enemy  in  carrying  on  the  war,  he 
is  justly  deemed  to  have  forfeited  his  title  to  freight.  Ilencc,  the 
carrying  of  contraband  goods  to  the  enemy;  the  engaging  in  the 
coasting  or  colonial  trade  of  the  enemy;  the  spoliation  of  papers, 
and  the  fraudulent  suppression  of  enemy  interests,  have  been  held 
to  afl'oct  tin;  neutral  with  the  forfeiture  of  freight;  and  in  cases  of 
a  more  flagrant  character,  such  as  carrying  despatches  or  hostile 
military  passengers,  an  engagement  in  the  transport  service  of  the 
enemy,  and  a  breach  of  blockade,  the  penalty  of  confiscation  of 
the  vessel  ha.s  ahso  been  inflicted.  The  Commcrccn,  1  "Wheat.  1\. 
882,387;  The  Sarah  Christina,  1  Ilob.  2.'!7;  The  Ilaase,  Ibid. 
288;  The  Emanuel,  Ibi.l.  '2!Mi;  The  Tmmanuel,  2  Rob.  101  ;  The 
Atlas,  Ibi.l.  2!t!);  The  Rising  Sun,  Ibid.  104  ;  The  Maddunna  del 
Burso,  4  Kub.  1<J!). 


228  TUE   LAW   OF   snirriNG. 

212  a.  By  the  modern  law  of  nations,  provisions 
are  not  in  general  deemed  contraband;    but  they 
may  become  so,  although  the  property  of  a  neutral, 
on  account  of  the  particular  situation  of  the  war,  or 
on  account  of  their  destination.     If  destined  for  the 
ordinary  use  of  life  in  the  enemy's  country,  they  are 
not  in  general  contraband ;  but  it  is  otherwise  if  des- 
tined for  military  use.     Hence,  if  destined  for  the 
army  or  navy  of  the  enemy,  or  for  his  posts  of  naval 
or  military  equipment,  they  are  deemed  contraband. 
Another  exception  from  being  treated  as  contraband 
is,  where  the  provisions  are  the  growth  of  the  neutral 
exporting  country.     But  if  they  be  the  growth  of 
the  enemy's  country,  and  more  especially  if  the  pro- 
perty of  his  subjects,  and  destined  for  enemy's  use, 
there  does  not  seem  any  good  reason  for  the  exemp- 
tion.    In  such  a  case,  the  party  has  not  only  gone 
out  of  his  way  for  the  supply  of  the  enemy,  but  he  has 
assisted  him  by  taking  off  his  surplus  commodities.^ 

213.  Articles  which  are  exclusively  useful  for  war- 
like purposes,  are  always  contraband  when  destined 
for  the  enemy ;  those  of  promiscuous  use  in  war  and 
in  peace,  only  become  so  under  particular  circum- 
stances. Among  the  latter  class  are  included  naval 
stores  and  provisions,  as  we  have  obsered  in  the  pre- 


*  The  Comraercen,  s?*pm.  The  Jonge  IMargarctta,  1  Rob.  189. 
In  relation  to  certain  goods,  which  arc  often  deemed  contraband, 
such  as  pitch  and  tar,  when  they  are  the  growth  of  a  neutral 
country,  and  arc  on  board  of  a  ship  of  that  country,  they  are  now 
deemed  entitled  to  a  favorable  consideration,  and  instead  of  being 
condemned,  are  subjected  ordinarily  only  to  a  right  of  pre-emption. 
Story's  Abbott,  p.  420 ;  The  Twee  Juffrowen,  4  Rob.  242,  244; 
Ibid.  IGl,  355 ;  The  Neptunus,  6  Ibid.  405. 


OF  THE  CARRIAGE  OF  GOODS.     229 

ceding  section.^  If  they  are  IdouucI  to  a  port  of 
military  or  naval  equipment,  or  are  destined  for  the 
use  of  a  hostile  enemj^,  in  that  case  they  become 
contraband.^ 

214.  Simply  carrying  contraband  goods  does  not 
subject  the  ship  to  condemnation,' as  we  have  already 
seen,  unless  the  goods  and  the  ship  belong  to  the 
same  person.  But  any  fraudulent  or  unneutral 
conduct  on  the  part  of  the  ship-owner,  who  has  on 
board  contraband  goods,  such  as  Mse  papers,  or  a 
false  destination,  will  sulject  the  vessel  to  condem- 
nation. Such  too  will  be  the  efiect  of  carrying 
enemy's  troops  or  despatches,  or  engaging  in  the 
transport  service  of  the  enemy .^ 

21  o.  The  owner  is  bound  to  see  that  the  ship  is 
supplied  with  all  the  papers  required  by  the  laws  of 
the  country  to  which  she  belongs,  and  according  to 
treaties  and  the  laws  of  nations.  This  is  a  part  of 
the  implied  contract  of  seaworthiness."  But  while 
the  ship  must  have  on  board  such  papers,  the  owner 


I  n 


The  reader  will  find  the  authorities  numerously  collected  in  1 
Wheat.  ;580,  in  a  note,  written,  I  presume,  by  Judge  Story,  as  it 
is  now  known,  since  the  publication  of  his  Life  and  letters,  that  he 
was  the  author  of  most  of  the  notes  on  prize  law,  contained  in 
Wheaton's  ll(j)orts. 

"  The  Comnicrcen,  1  Wheat.  382 ;  The  Jonge  Margaretta,  1 
Rob.  ]l.  IM);  The  Xeptunua,  3  Hob.  80. 

»  The  rranklin,3  Kob.  K.  217;  The  Edward,  4  Rob.  G8 ;  Tlie 
Comnicrcen,  nupm  ;  The  Friendship,  0  ]lob.  420;  The  Atlantic, 
Ibid.  440 ;  The  Rapid,  Kdw.  R.  228. 

*  Kent's  Com.,  vol.  3,  205,  and  authorities  cited.  8ec  also 
Bas  V.  Steele,  3  Wash.  C.  (.'.  R.  381 ;  Abbott  on  Shipping,  -127; 
Jacobson's  Sea  Laws,  Book  L  ch.  4  and  ch.  5;  Book  2,  ch.  3. 


230  THE   LAW  OF   siTirriNG. 

must  see,  on  the  other  liand,  that  she  has  not  on 
board  any  false  or  colorable  papers,  which  may  sub- 
ject her  to  capture  or  detention/ 

21 G.  Where,  however,  the  usage  and  course  of  the 
trade  is  such  that  the  parties  in  interest  know  or 
ought  to  know,  that  certain  papers  properly  ought 
to  be  on  board  for  the  purpose  of  protection  in  one 
event,  which,  in  another,  might  endanger  the  pro- 
perty, they  tacitly  consent  that  the  papers  shall  be 
so  used  as  to  accomplish  the  object,  that  is,  the  pro- 
tection of  the  property.^ 

'  Abbott  on  Shipping,  sxipra.  The  documents  and  papers  ex- 
pected to  be  found  on  board  a  neutral  ship  are,  says  Lord  Ten- 
terden  (note  a),  1.  The  passport,  sea-brief,  or  sea-letter.  2.  The 
proofs  of  property,  bill  of  sale,  &c.  3.  The  muster  roll.  4.  The 
charter-party.  5.  The  bills  of  lading.  G.  The  invoice.  7.  The 
log-book.  8.  The  bill  of  health.  As  to  the  documents  required 
by  our  statutes,  vide  Story's  Abbott,  427;  Jacobson's  Sea  Laws, 
68,  note.  The  reader  will  find  in  this  note  a  circular  of  the  Hon. 
A.  J.  Dallas,  of  Feb.  25th,  18L5,  then  Secretary  of  the  Treasury,  to 
the  Collectors  of  the  Customs  of  the  United  States,  in  which  the 
several  documents  required  by  our  laws  and  the  law  of  nations  are 
stated. 

"  If  a  master  of  a  ship,"  says  Roccus,  "  take  on  board  prohibited 
articles,  and  on  that  account  the  cargo  is  confiscated,  he  is  bound 
to  make  good  the  loss  to  the  shippers.  In  like  manner,  if  unlaw- 
ful colors  or  signals  are  used  by  the  ship,  and  the  goods  are  in 
consequence  forfeited  and  lost,  the  master  is  liable.  A  case  of 
this  kind  occurred  at  Ancona.  The  master  was  sailing  under 
Ancona  colors  during  the  war  between  the  Emperor  and  France, 
and  in  passing  by  some  Imperial  territory  he  hoisted  French  colors, 
and  was  thereupon  captured  by  the  Imperial  fleet,  to  the  great 
injury  of  the  merchants,  although  they  recovered  their  goods.  The 
master  was  condemned  to  make  good  the  loss  sustained  by  the 
owners  of  the  ship  and  goods."     Note  70. 

2  Livingston  v.  Maryland  Ins.  Co.,  7  Cranch,  R.  50G,  53G.     See 


OF    THE    CARRIAGE    OF    GOODS.  231 

217.  By  the  Act  of  lS03,i  it  is  made  the  duty  of 
every  master  or  commander  of  a  ship  or  vessel  be- 
longing to  citizens  of  the  United  States,  on  his  arrival 
at  a  foreign  port,  to  deposit  his  register,  sea-letter, 
and  Mediterranean  passport  with  the  consul,  com- 
mercial agent,  or  vice-commercial  agent,  if  any  there 
be,  at  such  port.  In  case  of  refusal  or  neglect  of  the 
said  master  or  commander  to  deposit  the  papers  as 
aforesaid,  he  shall  forfeit  and  pay  $500.  In  the  case 
of  Harrison  v.  Yose,^  it  was  held  that  the  arrival  in- 
tended by  the  statute,  was  an  arrival  for  purposes  of 
business,  demanding  an  entry  and  clearance,  and  stay 
at  the  port  so  long  as  to  require  some  of  the  acts 
connected  with  business;  and  not  merely  touching 
at  a  port  for  advices,  or  to  ascertain  the  state  of  the 
market,  or  being  driven  in  by  an  adverse  wind,  and 
sailing  again  as  soon  as  it  changes. 

218.  Hence,  where,  as  in  the  above  case,  a  vessel 
arrived  at  the  harbor  of  Kingston,  Jamaica,  and 
came  to  anchor  at  about  a  quarter  of  a  mile  from 
the  town,  but  did  not  go  up  to  the  town,  nor  come 
to  an  entrj^  nor  discharge  any  part  of  her  cargo,  nor 
take  in  passengers  or  cargo,  nor  do  any  business  ex- 
cept to  communicate  with  the  consignees,  by  whom 
the  master  was  informed  tlint  his  cargo  was  sold,  de- 
liverable at  Savannah  la  Mer,  the  master  does  not 
incur  the  statute  penalty  for  omiltiiig  to  deliver  his 
papers  to  the  consul. 

alHo  IJrown  v.  Rliaw,  1  Caincs'  11. 480 ;  Id.  040 ;  13  Mass.  11.  173  ; 
14  John.  K.  300. 

'  Act  U.  8.,  28  Feb.  1«03,  sec.  2. 

"  0  How.  372. 


CHAPTER   X. 

OF  THE  COMMENCEMENT  AND  PROSECUTION  OF 

THE  VOYAGE. 

219.  AViiEN  the  hatches  of  the  vessel  are  properly 
caulked  and  secured,  and  everything  in  readiness  for 
sailing,  the  master  is  to  avail  himself  of  the  first  fair 
wind  and  depart,  otherwise  he  is  answerable  to  the 
shippers/  He  is  culpable,  if  he  sail  in  spite  of  wind 
and  weather ;  for  the  voyage  must  be  made  accord- 
ing to  the  circumstances  of  the  ship,  time,  and  place, 
and  according  to  tlie  practice  of  skilful  navigators.^ 
Hence,  the  carrier  is  not  responsible  for  delay  in  the 
voyage  on  account  of  boisterous  weather  or  adverse 
winds,  low  tides,  or  the  like.  These  are  dangers 
and  accidents  of  the  navigation  over  which  he  has 
no  control,  and  against  which  his  contract  contains 
no  warranty.^ 

220.  "When  the  charter-party  or  bill  of  lading  sti- 
pulates, that  the  vessel  shall,  with  all  convenient 

J  Jacobson's  Sea  Laws,  p.  100  ;  Roccus,  note  50 ;  Lois 
D'Olcron,  art.  2 ;  Droit  Mar.  de  Wisbury,  art.  16.  He  is  answer- 
able, if  the  goods  are  lost  or  injured  in  consequence,  or,  I  pre- 
sume, if  the  market  is  lost  by  the  delay,     lloccus,  suj)ra. 

^  Roccus,  supra;  Curtis's  Merchant  Seamen,  p.  215. 

3  Boyle  V.  M'Laughlin,  4  Ilarr.  &  J.  291;  Clark  v.  Barnwell, 
12  How.  U.  S.  R.  272. 


COMMEXCEIIENT,    ETC.,    OF    THE    VOYAGE.     233 

speed,  sail  and  proceed  to  such  a  port,  or  so  near 
thereto  as  she  may  safely  get,  the  party  is  bound  to 
sail  in  the  stipulated  manner ;  but  Avhether  he  has 
done  so,  may  depend  upon  a  variety  of  considera- 
tions. In  the  first  place,  it  may  have  been  agreed 
that  the  vessel  should  be  made  seaworthy  and  fitted 
for  the  voyage.  As,  therefore,  the  parties  did  not 
contemplate  the  case  of  a  vessel  already  seaworthy, 
&c.,  reasonable  time  must  be  allowed  to  make  her 
seaworthy.  An  embargo  in  port,  enemies  at  sea,  and 
other  causes,  may  or  may  not  make  it  convenient  or 
reasonable  for  her  to  sail.  All  these  things  must  be 
judged  of  by  a  Jury.^ 

221.  If  the  charter-party  provides  that  the  ship 
shall  be  ready  and  sail  by  a  certain  day,  in  that  case 
the  owners  or  captain  will  be  liable  to  an  action,  if 
she  does  not  sail  by  that  day.  Of  course  they  will  be 
excused,  if  the  thing  is  rendered  impossible  by  the 
day  having  passed  before  the  execution  of  the  con- 
tract, or  they  are  prevented  by  any  of  the  excepted 
dangers.^ 

222.  Having  commenced  the  voyage,  the  master 
must  proceed  to  the  destined  port  in  the  shortest, 
safest,  and  most  usual  course.  If  this  be  not  done, 
and  the  ship,  without  just  and  reasonable  cause, 
leaves  the  regular  and  customary  track,  it  is  a  de- 
viation, and  from  that  time  the  policy  of  insurance 
is  at  an  end,  and  the  insurer  is  discharged  from  all 
subsequent  responsibility.^     If  the  cargo  be  Injuivd 

'  LawcH  oil  ChartcT-I'artics.  2  DjiJ. 

■  lloccus  on  Ins.,  note  52;  Patrick  v.  Ludlow,  3  John.  Cas.  10; 


234  THE    LAW    OF    siiirriNG. 

by  tempest  during  sueli  unnecessary  deviation,  the 
deviation  is  a  sufliciently  proximate  cause  of  the  loss 
to  entitle  the  freighter  to  recover.  The  presump- 
tion of  law  is,  that  the  deviation  was  the  proximate 
cause  of  the  disaster,  but  this  presumption  may  be 
overthrown ;  and  if  it  can  be  shown  that  the  loss  or 
injury  was  not  the  result  of  the  deviation,  but  must 
equally  have  happened  if  there  had  not  been  any 
deviation,  or  in  other  words,  if  the  deviation  was  not 
the  cause  of  the  injury,  the  master  and  owner  are  not 
answerable.^ 

223.  It  is  no  deviation  to  go  out  of  the  way  to 
avoid  danger.  If  the  course  of  the  voyage  be  altered 
from  any  just  or  necessary  cause,  such  as  to  refit  the 
vessel,  or  avoid  a  storm  or  enemies,  or  to  relieve  a 
vessel  in  distress,  the  policy  of  insurance  is  not  dis- 
charged, nor  is  the  ship-owner  liable  to  the  shipper 
for  any  loss  or  injury  he  may  sustain  in  conse- 
quence.2 

Suydam  v.  Marine  Ins.  Co.,  2  John.  R.  138 ;  The  Ship  Blaireau, 
2  Cranch.  R.  257,  note;  Abbott  on  Shipping,  441 ;  Coles  v.  Mar. 
Ins.  Co.,  3  "Wash.  C.  C.  R.  150 ;  Snowden  v.  Phoenix  Ins.  Co.,  3 
Binn.  4GG. 

*  Davis  V.  Garrett,  6  Ring.  71G ;  3  Kent,  210 ;  see  also  Souter 
V.  Baymore,  7  Barr,  415.  If  the  termini  of  the  voyage  be  fixed 
in  the  policy,  the  vessel  cannot  go  out  of  the  usual  course  of  the 
voyage,  notwithstanding  she  is  permitted  to  stop  and  trade  at  any 
ports  or  places.  Winthrop  v.  The  Union  Insurance  Co.,  2  Wash. 
C.  C.  R.  7 ;  Coles  v.  The  Marine  Ins.  Co.,  supra.  See  further 
upon  the  subject  of  deviation,  Hand  v.  Baynes,  4  Whart.  R.  204; 
Crosby  v.  Fitch,  12  Conn.  410;  Ilobart  v.  Norton,  8  Pick.  159; 
Davis  V.  Garrett,  G  Bing.  716. 

'^  Roccus,  note  52  ;  Patrick  v.  Ludlow,  3  Johns.  Cas.  10;  Ja- 
cobson's  Sea  Laws,  p.  551 ;  The  Boston  k  Cargo,  1  Hum.  R.  328; 


COMMEXCEMENT,  ETC.,  OF  THE  VOYAGE.  235 

224.  A  deviation,  for  the  purpose  of  saving  the 
lives  of  the  persons  on  board  a  vessel  in  distress,  is 
a  duty  thrown  on  the  master  by  the  first  principles 
of  natural  law,  principles  which,  to  the  honor  of 
American  jurisprudence,  are  sanctioned  by  our  tri- 
bunals. A  deviation,  therefore,  for  such  purpose, 
does  not  discharge  any  insurance,  nor  render  the 
master  criminally  or  civilly  liable  for  any  subsequent 
disasters  to  his  vessel  occasioned  thereby.' 

225.  But  the  master  is  under  no  obligation  to  lie 
by  in  order  to  save  property,  or  to  delay  the  proper 
progress  of  the  voyage  by  gathering  ujd  the  frag- 
ments of  shipwreclv,  or  other  perils  of  the  sea.  Any 
stoppage,  for  the  purpose  of  saving  property,  is  a  de- 
viation from  the  voyage  ;  and  any  going  out  of  the 
usual  course  for  such  a  purpose,  being  wholly  unau- 
thorized, will  discharge  the  underwriters  from  all 
future  responsibility.  The  maritime  law,  however, 
looking  to  the  general  benefit  of  commerce,  upon  a 
large   and  comprehensive  policy,  does  not  prohibit 

The  Henry  I<]wbank,  IMil.  100;  JIason  v.  Ship  Blaircuu,  2  Cranch's 
R.  240 ;  Bond  v.  Brig  Cora,  2  Washington's  C.  C.  R.  80 ;  Suow- 
dcn  V.  Phcenix  Ins.  Co.,  supra. 

In  Souter  v.  Baymorc,  svpni,  it  was  held,  that  an  unnecessary 
deviation,  and  injnry  ensuing  to  the  cargo,  is  no  defence  to  an 
action  fur  freight,  except  so  far  as  the  loss  was  occasioned  by  the 
deviation.  It  was  also  held,  that  when  tlic  master  of  a  vessel  who 
has  contracted  to  carry  no  other  cargo,  and  in  violation  of  his  con- 
tract takes  ailditional  cargo,  an  injury  ensuing  is  no  defence  to  an 
action  for  freight,  except  so  far  as  the  damage  resulted  from  tlic 
brcacli  of  his  contract.  Sco  to  the  same  effect,  Tlnrt  v.  Allen,  2 
Watts'  K.  114  ;  Keed  v.  Dick,  8  Watts,  480. 

'  The  t5chooucr  Boston,  1  Sum.  o28 ;  The  Henry  l']\vl)ank,  Ibid. 
400. 


236  THE    LAW    OF    SHIPPING. 

the  master,  under  such  circumstances,  from  deviating 
to  save  property  in  distress,  if  he  deems  it  fit  in  a 
sound  exercise  of  his  discretion.  As  between  him- 
self and  his  owners,  the  usage  of  the  world  has 
clothed  him  with  this  authority ;  and  in  return  for 
such  extraordinary  hazards  it  has  enabled  the  owners 
to  partake  liberally  in  the  salvage  aAvarded  for  the 
meritorious  service,  when  it  is  successful.^ 

22G.  In  the  case  of  Williams  v.  Box  of  Bullion,^ 
it  was  held  not  to  be  a  deviation  for  a  vessel  to  go 
out  of  her  course  three  miles  to  speak  another  at  sea, 
on  seeing  a  signal  for  that  purpose ;  nor  to  delay 
three  hours,  to  take  from  a  foreign  ship,  bound  to  a 
foreign  port,  shipwrecked  mariners  of  the  United 
States,  for  the  purpose  of  bringing  them  home.  The 
case  was  distinguished  from  the  ordinary  case  of 
delay  and  deviation  to  save  Avrecked  property.  The 
decision  was  put  upon  the  ground,  that  the  devia- 
tion was  in  conformity  to  usage,  and  that  justifies 
the  master  equally,  as  when  the  deviation  results 
from  necessity. 

227.  "The  bearing  away,"  observed  Judge 
Sprague,  "  upon  seeing  the  signal  of  the  Urania,  and 
before  its  ol)ject  was  known  clearly,  Avas  not  a  devia- 
tion. It  was  no  more  than  a  common  incident  of  a 
voyage  which  the  parties  must  be  presumed  to  con- 
template as  likely  to  occur.     But  it  is  insisted,  that 

'  The  Henry  Ewbank,  1  Sum.  400.  See  also  Foster  v.  Gardner, 
Am.  Jurist,  No.  21 ;  The  Brig  Cora,  2  Wash.  C.  C  R.  80 ;  6  East's 
R.  54 ;  contra,  La  Belle  Creole,  1  Petcrs's  Ad.  R.  40 ;  The  Cato, 
Id.  64. 

=  6  Law  Rep.  3G3. 


COMMEXCEMENT,  ETC.,  OF  THE  VOYAGE.  237 

as  the  crew  of  the  Constitution  were  not  in  imme- 
diate danger  or  distress,  the  delay  to  take  them  on 
board  was  a  deviation.  Their  ship,  an  American 
vessel,  had  foundered  at  sea  on  a  voyage  to  the 
United  States.  They  had  been  rescued  by  the  Ura- 
nia, a  Danish  brig,  bound  to  Copenhagen.  They 
fell  in  with  the  Constellation,  an  American  ship, 
coming  to  the  United  States,  where  she  arrived  in 
thirteen  or  fourteen  da3^s. 

228.  "  That  it  is  the  invariable  practice  to  take 
men  on  board  under  such  circumstances,  is  abun- 
dantly proved.  Indeed  to  have  refused  to  receive 
their  shipwrecked  countrymen,  and  compel  them 
still  to  rely  on  the  hospitality  of  strangers,  and  be 
transported  to  a  foreign  and  distant  country,  would 
have  been  a  violation,  not  merely  of  the  courtesy, 
but  of  the  humanity  of  the  seas, — as  a  general  rule, 
iliat  is  not  to  he  deemed  a  deviation  loldcli  is  icitldn  the 
usage  of  the  seas  on  such  a  voyage.  Delays  to  save 
wrecked  property,  are  an  exception  to  this  rule. 
Salvage  in  such  case  is  given  only  to  the  insured 
and  those  engaged  in  the  service.  No  part  is  awarded 
to  the  underwriters ;  and  it  is  reasonable  that  the 
insured  should  not  be  permitted  to  become  wreckers 
for  their  own  pecuniary  benefit,  and  at  the  risk  of 
the  insurer."' 

229.  As  the  master  has  no  right  to  deviate  from 


>  The  rciidcr  will  find  in  3  Kent,  312,  a  very  satisfactory  state- 
ment of  tlic  law,  with  respect  to  deviation,  as  it  affects  the  con- 
tract of  insurance.  The  same  principles  arc  equally  applicable  to 
the  relatifin  between  the  shipper  and  .ship-owners.  8ce  also  Cod- 
wise  V.  Hacker,  1  Caincs'  K.  .020,  as  to  what  acts  will  .niKiunt  (o 
a  justification  or  waiver  of  a  deviation. 


238  THE    LAAV    OF    SIIIPriNG. 

the  accustomed  route  without  a  legal  cause,  so  for  a 
stronger  reason,  he  has  no  authority  to  substitute 
another  voyage  in  the  place  of  the  one  agreed  upon 
between  his  owners  and  the  freighters  of  the  ship. 
Everything  beyond  tlie  voyage  agreed  upon,  is  out 
of  the  scope  of  his  authority  as  master.  As  such, 
he  has  no  power  to  change  that  voyage  for  another.^ 

230.  In  the  case  of  Keeler  v.  The  Firemen's  Ins. 
Co.,'  it  was  said  by  Cowen,  J.,  that  a  deviation  pro- 
per is  always  relative  to  the  geographic  line  fixed  by 
the  policy.  And  hence,  he  said,  it  was  quite  diffi- 
cult to  perceive  how  deviation  can  be  predicated  of 
river  navigation  in  almost  any  case,  and  especially 
under  a  policy  on  time,  covering  all  and  any  adven- 
tures to  and  fro  in  the  whole  region  of  the  coasting 
trade  from  Albany  round  to  Boston,  and  thence  to 
Chesapeake  Bay,  at  the  pleasure  of  the  owners.  He 
was  of  opinion,  that  there  was  no  deviation  by  the 
master's  pursuing  any  track  within  the  limits  speci- 
fied by  the  policy. 

231.  "But  if  this"  (the  policy),  it  Avas  further 
observed,  "  had  tied  up  her  course  from  Albany  to 

'  Burgon  V.  Sharpe,  2  Camp.  N.  P.  R.  529. 

^  3  Hill's  R.  250.  See  Powell  v.  The  Firemen's  Ins.  Co.,  American 
Law  Rogi-tcr  (No.  2)  110.  In  this  latter  case,  it  was  held  by  the 
Kentucky  Court  of  Appeals,  that  where  a  steamboat  is  insured 
for  the  navigation  of  a  particular  river,  as  the  Mississippi,  and  not 
from  port  to  port,  the  rules  as  to  deviation  do  not  apply ;  and, 
therefore,  that  a  loss  has  been  incurred  while  the  boat  has  been 
runnin'^'  in  an  unfrequented,  though  navigable  channel  of  the  river, 
will  not  affect  the  policy.  But  sec  Gazzam  v.  Ohio  Ins.  Co., 
Wright's  R.  201 ;  Jolly  v.  Ohio  Ins.  Co.,  Ibid.  539,  5  Ohio  11. 
435.° 


COMMEXCEMEXT,  ETC.,  OF  THE  YOTAGE.  239 

Georgetown,  or  Alexandria,  she  being  in  the  Poto- 
mac, crowding  sail  for  her  port  of  destination,  though 
so  unskilfully  as  to  ao  in  the  wronof  channel — one 
that  was  never  taken  before  for  such  a  purpose — 
jet,  so  long  as  she  kept  the  general  course  of  the 
river,  she  had  not,  I  apprehend,  deviated  within  the 
sense  of  the  law."  But  has  not  the  master,  in  the 
very  inception  of  his  contract  with  the  freighter, 
agreed  to  go  in  the  usual  course,  and  so  far  as  river 
navigation  is  concerned,  in  the  accustomed  channel? 
and  if  he  fails  to  do  so,  is  he  not  performing  his  con- 
tract, whether  through  ignorance  or  wilfulness,  is 
immaterial,  in  a  manner  difierent  from  his  under- 
taking? and  if  loss  or  accident  occurs,  would  not  the 
deviation  be  deemed  the  proximate  cause  of  it?  Wa 
apprehend  that  the  legal  answer  to  these  queries, 
must  be  in  the  afhrmative.^ 

232.  If  the  charter-party,  bill  of  lading,  or  receipt 
for  the  goods,  prescribes  a  particular  route,  the  mas- 
ter must  pursue  it.  Hence,  where  the  owner  of  a 
line  of  vessels  engaged  in  transporting  goods  from 
Philadelphia  to  Baltimore,  gave  to  the  shipper  the 
following  receipt :  ''  Received  on  board  II. 's  line  for 
Baltimore  via  Chesapeake  and  Delaware  Canal,  from 
J.  B.  (the  shipper),  one  hundred  slaughter  hides,  on 
deck,  wliifli  I  promise  to  deliver  to  J.  D.,  at  Balti- 
more, the  dangers  of  the  navigation,  fire,  leakage 

*  Sec  Dunsoth  v.  Wade,  2  Scuninion's  R.  289.  Sec  also,  Iler- 
man  v.  We.s(crn  Marine  &  F.  Ins.  Co.,  13  Loui.s.  II.  516;  Stewart 
V.  Tenn.  M.  &  K.  Ins.  Co.,  10  TIm.ii.li.  242,  and  Natchez  Ins.  Co. 
V.  Stanton,  2  Smcdcs  &  Mar.  U.  ;J40,  as  to  the  effect  upon  the 
policy  of  insurance  of  taking  vessels  iu  tow.  But  sec  the  fore- 
going note. 


240  THE    LAW    OF     SlIirPING. 

uiul  bi'oakagc  cxceptetl,  ho  or  they  paying  freight," 
&c.,  it  was  held,  that  this  was  a  eoiitract  to  carry  the 
goods  to  Baltimore  through  the  canal.  It  appeared 
in  evidence  that  the  vessel  left  Philadelphia,  and  on 
arriving  at  the  mouth  of  the  canal,  the  captain  was 
informed  that  the  locks  were  out  of  order,  and  that 
he  could  not  be  allowed  to  pass  through  the  canah 
He  then  proceeded  down  the  bay  and  out  to  sea, 
with  the  intention  of  going  round  to  Baltimore,  but 
in  a  gale  of  wind  the  vessel  struck  on  a  shoal,  and 
with  the  cargo  was  totally  lost. 

233.  It  was  held,  that  these  circumstances  did  not 
excuse  the  deviation  from  the  designated  route. 
'•  When  the  master  discovered  the  impediments  to 
the  prosecution  of  the  voyage,  through  the  route 
called  for  in  the  contract,  his  duty  was  plain ;  he 
had  one  of  two  courses  to  pursue :  to  remain  in  a 
place  of  safety  at  the  mouth  of  the  canal,  or  in 
some  convenient  and  safe  place  in  the  neighbor- 
hood, until  the  obstructions  were  removed ;  or  he 
should  have  returned  and  informed  the  owners  and 
shippers  of  the  impracticability  of  proceeding  through 
the  canal.  The  legal  effect  of  the  contract  is  an  en- 
gagement to  deliver  the  goods  at  Baltimore  in  a 
reasonable  time;  and  what  would  be  a  reasonable 
time,  must  be  determined  under  all  the  circum- 
stances, with  a  view  to  the  condition  of  the  canal, 
the  season  of  the  year,  the  state  of  the  weather, 
and  such  other  matters  as  might  enter  into  the  ques- 
tion."^ 


'  Hand   V.    Bayncs,   4  Wbart.   20.4.      There  is  a  distinction, 
recognised  by  the  Courts,  between  implied  covenants,  by  opera- 


COMMEXCEMENT,  ETC.,  OF  THE  VOYAGE.  241 

234.  It  was  further  held,  that  the  clause  m  the 
receipt,  "  the  dangers  of  the  navigation,"  did  not  ap- 
ply to  dangers  caused  bj  the  canal's  being  by  inevi- 
table accident  rendered  impassable.  Occasional  in- 
terruptions of  trade,  arising  from  breaches  in  canals, 
or  other  accidents,  are  inconveniences,  it  was  said, 
but  in  no  sense  could  be  considered  as  dangers  of  the 
navigation,  coming  within  the  exce^^tion. 

235.  AYhen  the  bill  of  lading  stipulates  that  the 
goods  are  to  be  carried  from  one  port  to  another,  a 
direct  voyage  is  prima  facie  intended,  but  this  pre- 
sumption may  be  controlled  by  a  usage  to  stop  at 
intermediate  ports,  or  by  personal  knowledge  on  the 
part  of  the  shipper,  that  such  a  course  is  to  be  pur- 
sued. The  express  terms  of  a  bill  of  lading  in  such 
a  case  are  not  contradicted  by  evidence  of  the  usage. 

tion  of  law,  and  express  covenants.  The  latter  arc  taken  more 
strictly.  And  for  the  reason  that  when  a  party,  by  his  own  con- 
tract, creates  a  duty  or  charge  upon  himself,  he  is  bound  to  make 
it  good,  and  is  not  excused,  although  prevented  by  inevitable  ne- 
cessity, because  it  is  said  he  might  have  provided  against  it  by 
Lis  contract.  On  this  ground  it  has  been  held,  that  if  a  ship  be 
warranted  to  sail  on  or  before  a  particular  day,  but  is  prevented 
from  sailing  on  that  day  by  an  embargo,  the  warranty  is  not  com- 
plied with.  Horn  v.  Whitmorc,  2  Cowp.  784  ;  Parson  v.  Watson, 
2  Id.  7S.0.  Whether  this  doctrine  rests  upon  grounds  that  ap- 
prove themselves  to  reason  and  justice,  whether  it  would  not  be 
more  in  harmony  with  both  to  consider  every  contract  of  that 
nature  a.s  excepting  impossibilities,  and  excusing  the  party  if  they 
interposed  to  prevent  the  performance  of  his  undertaking,  it  is  now 
too  late  to  inquire.  The  authorities  arc  conclusive  upon  this 
point.  But  in  the  ca.«e  of  implied  covenants  by  operation  of  law, 
if  the  party  is  disabled  to  pfrforiii  tliPiii,  without  any  default  in 
him,  and  hath  no  remedy  over,  then  the  law  will  excuse  him.  Sec 
0  T.  K.  750;  8  Id.  2'j'J. 

16 


242  TUE    LAW    OF    siiirriNG. 

A  presumption  of  law  is  controlled  by  proof  of  a  fact, 
that  is.  of  the  usage.' 

236.  If  the  ship  be  destined  to  several  places,  the 
master  must  sail  to  them  in  the  order  designated,  or 
Avhicli  may  be  usual,  making  such  intermediate  rests 
and  stages  only  in  the  course  of  his  voyage  as  the 
ordinary  convenience  of  his  employers  and  the 
nature  of  the  ship's  service  may  require.  If  she  be 
driven  into  a  port  out  of  the  course  of  the  voyage  by 
tempest,  or  the  master  sail  thither  for  any  of  the 
before-mentioned  reasons,  he  must  wait  no  longer 
than  necessity  requires,  but  sail  again  Avithout  delay; 
and  for  that  purpose  supply  his  ship  with  the  requi- 
site necessaries  or  repairs  as  expeditiously  as  he  can. 
While  a  vessel  is  detained  at  a  port  of  necessity,  it 
is  no  deviation  to  take  in  additional  cargo,  if  no 
additional  delay  or  risk  is  occasioned  thereby .^  And 
when  a  policy  of  insurance  grants  liberty  to  touch 
at  a  port,  the  ship  may  take  in  or  discharge  cargo, 
without  its  being  considered  a  deviation,  if  no  delay 
or  change  of  risk  is  incurred  thereby,  and  the  pur- 
pose for  which  the  liberty  to  touch  was  granted  is 
kept  in  view.^ 

237.  When  the  vessel  is  driven  into  an  interme- 
diate port  by  stress  of  weather,  and  is  unable  to  pro- 
ceed in  her  present  condition,  the  master  is  bound 

'  Lowry  v.  Russell,  8  Pick.  3G0. 

2  Abbott  on  Shipping,  445;  3  Kent,  314;  Chase  v.  Eagle  Ins. 
Co.,  5  Pick.  51 ;  Hughes  v.  Union  Ins.  Co.,  3  Wheat.  159;  Paine 
V.  Col.  Ins.  Co.,  2  John.  2G4 ;  Bork  v.  Norton,  2  M'Lcan  R.  422. 

3  Thorndike  v.  Boardman,  4  Pick.  471. 


C0MMENCE5IENT,    ETC.,    OF    THE    VOYAGE.     243 

to  repair  her  in  convenient  time,  or  jorocure  another 
vessel  to  carry  the  goods,  as  we  shall  more  particu- 
larly see  hereafter.  In  the  case  of  Bork  v.  Norton,^ 
it  was  observed  by  Judge  M'Lean,  that  it  might  well 
be  a  matter  of  doubt  whether  all  the  principles  of 
maritime  contracts,  such  as  we  are  now  considering, 
could  be  applied  to  the  navigation  of  the  western 
lakes  and  rivers.  A  distinction,  he  thought,  might 
well  be  drawn  between  a  contract  for  the  transporta- 
tion of  goods  upon  the  high  seas,  and  over  lakes  of 
but  limited  extent. 

238.  In  the  former  case,  he  said,  the  risks  were 
numerous,  and  being  well  understood,  might,  to  some 
extent  at  least,  be  protected  by  an  insurance.  In 
the  latter,  if  the  risks  are  of  the  same  nature,  they 
are  more  limited.  But  tlie  main  dilTerence  is,  the 
transportation  by  sea  is  the  only  means  of  convey- 
ance in  one  case,  while,  in  the  other,  if  obstructions 
on  the  water  occur  by  ice  or  otherwise,  a  land  trans- 
portation may  be  adopted.  And  the  contract  is 
made  in  reference  to  this  fact,  either  express  or  im- 
plied. 

230.  Witli  respect  to  the  first  suggested  diflercnce, 
it  may  l)e  observed,  tliat  if  the  risks  by  lake  naviga- 
tion anj  uunx:  limited,  tliey  are  equally  well  under- 
stood as  the  risks  at  sea,  and  can  therefore  be  equally 
protected  by  insurance.  With  respect  to  the  second 
difference,  the  conclusion  drawn  from  it  does  not 
seem  a  sound  one.  When  a  party  agrees  to  convey 
goods  by  water,  there  are  certain  known  risks  to  be 

'  li  M'Lcan  11.  422. 


244  THE    LAW    OF    SHIPriNG. 

encountered.'  These  may  delay  the  voyage.  The 
law  has  prescribed  the  duties  of  the  master  in  such 
a  contingency.  When  the  voyage  is  interrupted,  he 
must  wait  no  longer  than  necessity  requires.  But  the 
law  has  nowhere  enumerated  it  as  among  liis  duties, 
that  when  the  progress  of  the  voyage  is  delayed  by 
embargo  or  ice,  that  he  shall  change  the  mode  of 
conveyance,  and  subject  himself  to  the  onerous  ex- 
pense of  transporting  the  goods  by  land.  If  the 
shipper  wishes  to  guard  against  dela}^,  he  can,  by  a 
special  contract,  make  it  obligatory  upon  the  carrier 
to  forward  the  goods  by  land  when  their  progress  is 
interrupted  by  the  accidents  of  water  navigation. 
Simply  because  there  is  a  mode  of  transportation 
different  from  the  stipulated  mode,  would  seem  to 
be  an  insufficient  reason  for  the  position,  that  the 
carrier  must  avail  himself  of  it  upon  the  happening 
of  a  certain  event. 


'  Might  not  the  carrier  take  upon  himself  the  responsibility  of 
an  insurer,  by  changing  the  mode  of  conveyance  ?  Suppose  the 
goods  should  be  lost,  after  the  change  from  water  to  land  carriage, 
by  inevitable  accident  or  irresistible  force,  would  not  the  shipper 
have  a  right  to  claim  damages,  and  upon  the  ground  that  the  car- 
rier by  changing  the  mode  of  conveyance,  had  impliedly  assumed 
to  be  answerable  for  all  losses  ?  "Would  not  that  be  the  legal  inter- 
pretation of  the  transaction  ?  At  all  events,  would  not  such  change 
of  conveyance  be  deemed  by  the  law  the  proximate  cause  of  any 
loss  or  damage  that  might  ensue  ? 

If  the  shipper  unconditionally  receives  the  goods  at  the  port  of 
distress,  and  conveys  them  overland  to  the  port  of  destination,  the 
expense  of  such  conveyance  must  be  borne  by  him,  and  he  is  also 
bound  to  ])3Ly  pro  rata  freight.  When  the  shipper  receives  the 
goods,  as  to  him,  the  voyage  is  ended ;  and  as  to  the  future,  the 
carrier  has  neither  duty  nor  reward.  Reed  v.  Dick,  8  Watts'  R. 
479. 


COMMENCEMENT,  ETC.,  OF  THE  VOYAGE.  245 

240.  If  by  reason  of  the  damage  done  to  the  ship, 
or  through  want  of  necessary  materials  she  cannot 
be  repaired  at  all,  or  not  without  very  great  loss  of 
time,  the  master,  by  the  English  law,  is  at  liberty 
to  procure  another  ship  to  transport  the  cargo  to  the 
place  of  destination.^  In  this  country,  says  Chan- 
cellor Kent,^  we  have  followed  the  doctrine  of  Eme- 
rigon,  and  the  spirit  of  the  English  cases,  and  hold 
it  to  be  the  duty  of  the  master,  from  his  character 
of  agent  of  the  owner  of  the  cargo,  which  is  cast 
upon  him  from  the  necessity  of  the  case,  to  act  in 
the  i^ort  of  necessity  for  the  best  interest  of  all  con- 
cerned ;  and  he  has  powers  and  discretion  adequate 
to  the  trust,  and  requisite  for  the  safe  delivery  of  the 
cargo  at  the  port  of  destination.  If  there  be  another 
vessel  in  the  same  or  in  a  contiguous  port,  which 
can  be  had,  the  duty  is  clear  and  imperative  upon 
the  master  to  hire  it ;  but  still  the  master  is  to  exer- 
cise a  sound  discretion  adapted  to  the  case.  He  may 
tranship  the  cargo,  if  he  has  the  means,  or  let  it  re- 

'  Abbott  on  Shipping,  446.  The  English  law  leaves  the  master 
at  Uhrrtij  to  tranship,  as  stated  in  the  text.  It  is  not  (•onsidcreJ, 
it  would  seem,  to  be  both  bis  duty  as  well  as  his  right  to  forward 
the  cargo  in  another  vessel.  See  Shipton  v.  Thornton,  9  Adol.  & 
Ellis,  314. 

When  the  privilege  of  transliipmcnt  is  reserved  to  the  carrier  in 
the  bill  of  lading,  he  is  not  thereby  discharged  from  any  rcspon- 
eibility  which  is  incident  to  his  contract  until  the  goods  be  delivered 
at  tiieir  destined  port.  See  Angcll  on  Carriers,  232  ;  and  also 
AVhitcsidcH  V.  Ilussell,  S  Watts  &  S.  44 ;  M'Gregor  v.  Kilgore,  G 
Ohio  11.  H.T;  Dunscth  v.  Wade,  2  Scamm.  (111.),  2SS ;  Ca.s.sillcy 
V.  Young,  4  JJ.  ."Nlon.  11.  205;  Little  v.  Scniple,  S  Missou.  11.  91). 

"3  Kent,  212;  Kmcrigon,  tome  I.  42^,429;  Code  do  (^)m- 
mcrce,  art.  29G ;  IJoulay  I'aty,  Cours  de  Droit  Com.,  tome  TT. 
400-405. 


246  THE    LAAr    OF     SHIPPING. 

main.     lie  may  bind  it  for  repairs  to  the  ship.     lie 
may  sell  part  or  hypothecate  the  whole.' 

241.  If,  however,  the  shipper  will  not  consent  to 
the  offer  of  the  master  to  procure  another  vessel  to 
carry  on  the  cargo,  he  is  bound  to  pay  full  freight. 
It  is  his  own  act  that  prevents  the  due  fulfilment  of 
the  contract.^  It  should  be  observed,  that  the  duty 
of  the  master  to  procure  another  vessel  is  only  im- 
perative, when  another  vessel  can  be  had  in  the  same 
or  a  contiguous  port,  or  at  one  within  a  reasonable 
distance,  and  there  can  be  no  difficulties  in  the  way 
of  a  safe  transhipment.^ 

242.  If  the  master  does  tranship  for  the  comple- 
tion of  the  voyage,  the  freighter  is  bound  to  pay  the 
extra  freight,  that  is,  the  increased  freight  arising 
from  the  hire  of  the  new  ship."*  Extra  freight,  in 
such  a  case,  means  the  increase  of  freight  bej'ond 
what  the  freight  would  have  been  under  the  original 
charter-party,  if  the  necessity  of  hiring  another  vessel 
had  not  intervened.     The  owner  of  the  goods  is  not 

■  See  also  Muraford  v.  The  Com.  Ins.  Co.,  5  John.  R.  262 ; 
Searle  v.  Scovill,  4  Johns.  Ch.  R.  218 ;  Jordan  v.  Warren  Ins. 
Co.,  1  Story's  R.  342 ;  Miston  v.  Lord,  Blatch.  R.  354. 

3  Molloy,  B.  2,  c.  4,  s.  5 ;  Griswold  v.  New  York  Ins.  Co.,  3 
John.  321;  Bradhurst  v.  Col.  Ins.  Co.,  9  lb.  17;  Herbert  v.  Hal- 
lett,  3  John.  003;  Schioflfelin  v.  New  York  Ins.  Co.,  9  lb.  21; 
Willings  V.  Blight,  2  Peters's  Adm.  R.  289;  3  Kent,  210;  Ship- 
ton  V.  Thornton,  9  Adol.  &  Ellis,  336. 

8  Saltcrs  V.  Ocean  Ins.  Co.,  12  John.  R.  107 ;  Treadwcll  v.  Union 
Ins.  Co.,  0  Cowen,  27G;  The  Gratitudine,  3  Rob.  Ad.  R.  240;  3 
Kent,  213. 

■•  Mumford  v.  Com.  Ins.  Co.,  5  John.  262;  Searle  v.  Scovill, 
supra;  Shipton  v.  Thornton,  supra. 


COMMEXCEIIENT,    ETC.,    OF    THE    VOYAGE.     247 

responsible  for  the  old  and  the  new  freight  united. 
The  first  ship  did  not  earn,  upon  any  principle, 
more  than  a  rateable  proportion  of  the  original 
freight,  because  she  performed  only  a  part  of  the 
voyage ;  and  it  might  well  happen,  if  the  freight  up 
to  the  port  of  necessity  was  accurately  and  justly 
apportioned,  that  the  hire  of  the  new  ship  might  not 
amount  to  more  than  the  portion  of  the  original 
freight  which  remained  to  be  earned  by  the  first 
ship.  To  ascertain  the  amount  of  such  extra  freight, 
the  proper  rule  is,  to  determine  the  difference  be- 
tween the  amount  of  freight  under  the  original  char- 
ter-party, and  the  rateable  freight  for  the  goods 
saved  to  the  port  of  necessity,  added  to  the  freight 
of  the  new  ship  hired  to  carry  on  the  goods.  This 
extra  freight  for  the  renewed  voyage  is  a  lien  on  the 
cargo.  ^ 

243.  In  New  York,  and  by  the  French  law,  which 
is  entitled  to  great  weight  upon  a  maritime  question, 
the  insurer  upon  the  goods  must  pay  the  increased 
freight  arising  from  the  necessary  change  of  the  ship.^ 
But  in  the  case  of  Shultz  v.  Ohio  Ins.  Co.,^  the  Court 
of  Appeals  of  Kentucky  held,  that  the  insurer  gua- 
rantees only  the  safe  arrival  of  the  goods,  and  is  not 

*  Scarle  v.  Scovell,  4  John.  Ch.  11.  218;  Potbicr,  tit.  Chartc- 
partic,  n.  07,  08. 

'  Murnforil  v.  The  Cora.  Ins.  Co.,  5  John.  II. ;  Scarle  v.  Scovell, 
suprti ;  American  Ins.  Co.  v.  Center,  4  Wend.  45;  Code  dc  Com- 
merce, \o.  o(»l,  .'{03;  Emerigon,  tome  I.,  429  to  433. 

'  1  IJ.  .Monroe,  330;  see,  also,  Cazc  v.  lialt.  In.s.  Co.,  7  Cranch, 
358;  Columbian  Inn.  Co.  v.  Catlett,  12  Wheat.  383;  Haillc  v. 
Modigliani,  Marsh  on  Ins.  728;  Dodge  v.  The  Union  Marine  Ins. 
Co.,  17  iMass.  II.  475. 


248  THE    LAW    OF    SHIPPING. 

liable  to  the  insured  for  extra  freight  incurred  by  a 
transhipment,  in  case  of  a  disaster  insured  against. 
The  Court,  in  this  case,  \vent  into  a  very  elaborate 
examination  of  the  American  authorities  upon  the 
point,  and  while  they  could  fnid  no  case  directly  mi- 
litating against  the  doctrine  of  the  New  York  cases, 
they  thought  the  general  tenor  and  bearing  of  them 
were  inconsistent  with  it.  But  it  is  at  all  times  a 
dangerous  practice  to  apply  the  general  expressions 
of  Judges,  in  deciding  questions  directly  before  them, 
to  cases  where  new  points  have  arisen,  and  new 
issues  are  involved.  Those  general  expressions  de- 
cide nothing.  They  were  employed  with  reference 
to  one  subject,  and  while  the  mind  was  occupied 
with  particular  questions.  Other  questions  were  ex- 
cluded from  the  mental  view,  and  those  expressions 
were  used  without  regard  to  their  effect  upon  cases 
that  might  hereafter  arise.  Hence  it  is,  that,  as  a 
general  rule,  subject  of  course  to  particular  excep- 
tions, it  is  only  the  actual  decision,  upon  the  actual 
point  before  a  Court,  that  is  entitled  to  the  weight  of 
jorecedent,  or  that  is  legitimately  used  to  explain  the 
exact  meaning  and  doctrine  of  the  Judge. 

244.  If  the  master's  own  ship  can  be  repaired,  he 
is  not  bound  to  send  the  cargo  by  another,  but  may 
detain  it  till  the  repairs  are  made.  And  he  has 
power  and  authority  over  the  cargo  adequate  to  the 
purpose  of  effecting  the  repairs,  and  providing  for  its 
safe  delivery  at  the  port  of  destination.  It  is  true, 
that  in  the  ordinary  state  of  things,  the  master  is  a 
stranger  to  the  cargo  beyond  the  purposes  of  safe 
custody  and  conveyance,  yet  in  cases  of  instant,  and 


COMMENCEMENT,  ETC.,  OF  THE  VOYAGE.  249 

unforeseen,  and  unprovided  for  necessity,  the  cha- 
racter of  agent  and  supercargo  is  forced  upon  him  by 
the  general  poHcy  of  the  law.  And  he  may  there- 
fore bind  the  cargo  for  repairs  to  the  ship,  when  he 
cannot  obtain  the  necessary  funds  upon  a  pledge  of 
the  ship  itself.  lie  may  sell  part  of  the  cargo,  for 
the  purpose  of  applying  the  proceeds  to  the  prosecu- 
tion of  tlie  voyage,  or  he  ma}^  liypothecate  the  whole 
for  the  same  purpose.  If  he  sells,  the  law  does  not 
fix  any  aliquot  part,  though  it  must  be  of  a  part 
only;  and,  generally  speaking,  it  must  be  adequate 
to  the  occasion.  What  is  reasonable  and  just,  in  re- 
spect to  the  execution  of  his  powers  in  such  cases,  is 
legal.' 

245.  The  books  are  not  very  definite  as  to  the  time 
allowable  to  the  master  to  repair  and  go  on  with  his 
voyage.  Some  of  the  foreign  regulations,  as  was  ob- 
served by  Judge  Putnam,  in  the  case  of  Clark  v. 
Mass.  F.  &  M.  Ins.  Co.,^  seem  not  to  be  consistent  or 
consonant  with  reason,  experience,  or  convenience, 
when  applied  to  the  usage  of  our  own  countrj'. 
Thus,  for  example,  according  to  the  laws  of  the 
Ilanse  Towns,  three  days  at  most  are  allowed  to  the 
master  to  repair.  By  the  laws  of  Oleron,^  if  the 
master  can  mulUij  repair  his  vessel,  he  may  do  it,  or 
if  he  pleases,  he  may  iVeight  another  ship  to  perform 
the  voyage.  By  tbe  hiws  of  Wisbury,^  it  is  said  tliat 
the  master  may  fit  out  liis  sliip,  if  he  can  do  it  in  a 
lUfla  time.     Molloy   remarks,  tliat  In  such  case,  the 

'  The  Oratituflinc,  3  Rob.  Ad;  R.  240 ;  Abbott  nn  Shipp.  447. 
«  2  rick.  lOS.  »  Art.  4.  *  Art.  IG. 


250  THE     LAAV    OF     S  HIPP  I  NO. 

master  may  either  mend  his  ship  or  freight  another.' 
He  uses  no  words  of  restriction  as  to  the  time. 

246.  From  these  vague  and  loose  expressions,  no 
rule  can  be  deduced.  Our  American  cases  give  a 
wide  latitude  to  the  master,  and  where  the  cargo  is 
not  of  a  perishable  nature,  allow  him  adequate  time 
to  make  the  necessary  repairs.  "  What  is  to  be  un- 
derstood by  repairing  readily,  or  specdihj,  or  in  a  little 
time,  must  depend  upon  the  circumstances  of  the  case. 
Chief  Justice  Kent,  speaking  of  a  ship  which  was  re- 
paired in  seventeen  days,  observed  that  she  was  in  a 
condition  to  be  immediately  repaired."^  And  in  the 
case  from  Pickering,  cited  in  the  margin,  it  was  held 
that  the  master  was  justified  in  retaining  his  cargo 
and  earning  his  freight,  although  the  ship  was  so 
much  damaged,  that  it  required  two  months  to  re- 
pair her.  Each  case,  as  it  arises,  must  furnish  its 
own  rule. 

247.  After  the  shipment  of  the  cargo  on  the  voy- 
age, the  shippers  have  no  right  to  demand  it  at  any 
intermediate  port,  short  of  the  port  of  destination, 
witliout  payment  of  the  full  freight  for  the  voyage, 
whether  the  cargo  arrive  there  in  a  damaged  or  in 
an  undamaged  state.  The  reason  is  obvious.  The 
master  has  a  right  to  carry  on  the  cargo  to  the  port 
of  destination ;  and  if  his  ship  be  capable,  either 
then,  or  within  a  reasonable  time,  of  carrying  the 
cargo  to  the  port  of  destination,  there  is  no  ground 


•  Book  2,  c.  4,  §  5. 

2  Clark  V.  Mass.  F.  &  M.  Ins.  Co.,  supra;  Griswold  v.  N.,  Y. 
Ins.  Co.,  3  John.  R.  327. 


COMMENCEMENT,  ETC.,  OF  THE  VOYAGE.  251 

to  sa^',  that  lie  is  not  entitled  to  earn  a  full  freiglit ; 
and  the  shippers  of  the  cargo  cannot  insist  upon 
changing  the  original  contract  in  invitum,  and  cut 
him  off  from  all  freight,  or  dismiss  him  with  a  pro 
rata  freight.^ 

248.  If  the  master  at  the  port  of  necessity  refuses 
either  to  tranship  the  cargo,  or  carry  it  on  in  his  own 
ship  within  a  reasonable  time,  he  is  entitled  to  no 
freight.  Freight  is  dependent  upon  the  due  per- 
formance of  his  contract,  and  if  he  declines  or  refuses 
to  perform  it,  his  claim  to  freight  is  destroyed.^ 

249.  If  the  cargo  is  of  a  perishable  nature,  and 
there  is  no  time  or  opportunity  to  consult  the  mer- 
chant, the  master  is  bound  to  tranship  or  sell  it, 
according  as  the  one  or  the  other  will  be  most  bene- 
ficial to  the  merchant.  He  is  the  agent  for  the 
benefit  of  all  concerned,  and  his  acts  done  under 
such  circumstances,  in  the  exercise  of  a  sound  dis- 
cretion, are  binding  upon  all  parties  in  interest.^ 

250.  But  when  the  cargo  is  so  much  damaged 
that  to  proceed  with  the  voyage  will  endanger  the 
safety  of  the  ship  or  cargo,  or  render  it  worthless, 
it  is  the  duty  of  tlie  master  to  land  and  sell  it  at 

«  Jordan  v.  Warren  Tns.  Co.,  1  Story's  C.  C.  R.  342. 

"Aniroyd  v.  Union  Ins.  ('o.,  15  IJinn.  437;  Coffin  v.  Storcr,  .^) 
MasH.  'J42  J  Trcadwcll  v.  Union  In.s.  Co.,  G  Cowcn,  270;  IMniii- 
ford  V.  Com.  Ins.  Co.,  5  .Inlm.  'JO-J  ;  'I'lic  Ann  I).  Hie  hanlsdii, 
Blatchford'H  K.  358,  note;  Miston  v.  Lmd,  Ibid.  35 U 

'  Abbott  on  Sliif.ping,  p.  447;  Tlio  Gratitudino,  3  Rob.  Ad.  R. 
240;  TIk!  I.sabolla,  I  M.  77;  Mi.ston  v.  Lord,  >^uj>ra. 


252  THE    LAW    OF     SHIP  PING. 

the  port  of  necessity,  -svhetlier  this  be  the  original 
port  of  the  shipment  to  which  the  ship  returns,  or 
at  any  intermediate  port,  at  which  the  ship  arrives 
in  the  course  of  the  voyage.  And  this  he  is  bound 
to  do,  in  the  absence  of  instructions  from  the  ship- 
per, even  though  the  cargo  may  be  in  a  condition  to 
be  carried  in  specie  to  the  port  of  destination  and 
there  Landed.^ 

251.  If  there  is  no  acceptance  of  the  cargo,  or 
waiver  of  performance  by  the  shipper,  or  his  agent, 
at  the  port  of  distress,  the  owner  of  the  vessel  is 
not  entitled  to  freight,  notwithstanding  the  damaged 
state  of  the  cargo  justified  its  sale  by  the  master 
at  such  port  of  distress.^  The  voluntary  acceptance 
of  the  cargo  by  the  shipper,  will  of  course  have  the 
effect  to  charge  him  with  a  rateable  portion  of  the 
freight,^ 

252.  But  there  is  no  authority  for  subjecting  him 
to  freight,  where  the  port  of  distress  and  of  accept- 
ance of  the  cargo,  is  the  port  of  shipment,  and 
when  no  part  of  the  voyage  has  been  performed. 
Hence,  where  A.,  by  his  agents,  chartered  a  vessel 
for  a  voyage  from  New  York  to  Havre,  the  freight 
to  be  payable  on  the  arrival  and  discharge  of  the 
cargo  at  Havre,  and  the  vessel  sailed,  but  encoun- 

>  Miston  V.  Lord,  siij^ra  ;  Jordan  v.  "Warren  Ins.  Co.,  1  Story's 
C.  C.  R.  342 ;  contra,  Ilalwerson  v.  Cole,  1  Spears,  324. 

^  The  Ann  D.  Richardson ;  Halwerson  v.  Cole,  1  Spears'  R. 
(S.  C.)  321;  7  Cranch's  R.  3G2j  Blatcbtbrd's  R.  358,  note;  post 
tit.  Freight. 

^  Miston  V.  Lord,  svpra. 


COMMENCEMENT,  ETC.,  OF  THE  VOYAGE.  253 

tered  a  storm  and  sprang  aleak,  and  put  back  to 
New  York :  in  consequence,  the  cargo  was  dis- 
charged, and  on  a  survey,  was  found  to  be  so  much 
damaged  by  salt  water,  that  it  would  not  bear  trans- 
portation, nor  would  its  shipment  have  been  safe  for 
the  vessel  or  crew.  A.'s  agents  refused  to  interfere 
with  it,  and  the  master  sold  it  at  auction.  In  an 
action  by  A.  for  the  net  proceeds,  it  was  held,  that 
the  owner  of  the  vessel  was  not  entitled  to  retain 
anythina-  for  freiuht.^ 

253.  ''  What  seems  decisive  of  this  case,"  said  his 
honor,  Judge  Nelson,  "  and  of  the  class  of  cases  to 
which  it  belongs,  is,  that  admitting  the  master  to  be 
the  agent  at  the  port  of  distress  of  all  parties  in- 
terested, and  that  he  has  acted  bona  fide,  and  for  the 
benefit  of  all  concerned,  in  the  sale  of  the  damaged 
cargo,  yet,  inasmuch  as  the  goods  were  in  a  condi- 
tion that  would  endanger  the  safety  of  the  ship  and 
the  lives  of  the  crew  if  they  were  carried  forward,  it 
cannot  be  said  that  the  voyage  was  broken  up  for 
the  benefit  of  the  cargo  any  more  than  for  the  benefit 
of  the  ship-owners.  Independently  of  au}^  duty  but 
that  the  master  owed  to  the  cargo  under  the  existing 
calamity,  the  interest  of  his  owners  dictated  the 
breaking  up  of  tlie  voyage ;  and  it  being  broken  up 
under  tliose  circumstances,  and  for  tliat  cause,  and 
the  shi[)i)or  liaving derived  no  benefit  under  Iiis  eon- 
tract,  it  is  (lilliciilt  to  find  any  principle,  legal  or 
equitable,  that  would  subject  him  to  any  part  of  the 
frei'dit." 


'  Miaton  v.  Lord, 


sxipni. 


254  TUE     LAW    OF     SHIPPING. 

254.  The  duty  of  the  master  to  tranship  or  sell 
the  cargo,  according  to  the  circumstances  of  the  case, 
is  equally  imperative  in  a  case  where  the  ship  has 
been  wrecked,  and  the  cargo  saved.  And  if  on  the 
high  seas,  the  ship  be  in  imminent  danger  of  sinking, 
and  another  ship,  apparently  of  sufticient  ability,  be 
passing  by,  the  master  may  remove  the  cargo  into 
such  ship,  and  although  his  own  ship  happen  to  out- 
live the  storm,  and  the  other  perish  with  the  cargo, 
he  will  not  be  answerable  for  the  loss.^ 

255.  So  too  in  the  case  of  a  charter-party,  where 
the  vessel  is  let  for  a  voyage,  and  is  sufficient  at  the 
commencement  of  it,  but  is  entirely  lost,  or  incapable 
of  pursuing  it,  the  hirer  is  entitled  to  betake  himself 
to  another  vessel,  and  the  owner  loses  his  freight 
upon  the  charter-party.  The  charterer,  however, 
must  not  abandon  the  vessel  whilst  she  can  be  pro- 
perly kept  afloat  and  used  for  the  purposes  of  the 
voyage ;  and  if  repairs  are  necessary,  he  may  make 
them  at  the  charge  of  the  owner.^ 

'  Abbott  on  Shipping,  p.  448. 

2  Kinibiill  V.  Tucker,  10  Mass.  R.  192.  See  this  case,  as  to 
whether  freight  runs  during  the  repairs.  "  The  disposal  of  the 
cargo  by  the  master,"  says  Lord  Tenterden,  "  is  a  matter  that  re- 
quires the  utmost  caution  on  his  part.  He  should  always  bear  in 
mind  that  it  is  his  duty  to  convey  it  to  the  place  of  destination. 
This  is  the  purpose  for  which  he  has  been  intrusted  with  it,  and 
this  purpose  he  is  bound  to  accomplish  by  every  reasonable  and 
practicable  method.  Every  act  that  is  not  properly  and  strictly 
in  furtherance  of  this  duty,  is  an  act  for  which  both  he  and  his 
owners  may  be  made  responsible;  and  the  law  of  England  does 
not  recognise  the  authority  of  any  tribunal  or  officer  acting  upon 
his  suggestion,  or  at  his  instance;  but  will  scrutinize  their  acts  as 
his  own.    The  hypothecation  of  the  cargo  is  allowed  by  the  marine 


COMMENCEMENT,  ETC.,  OF  THE  VOYAGE.  255 

25G.  In  the  case  of  shipwreck,  the  master  is  not 
at  liberty  to  sell  the  cargo  merely  on  the  ground  that 
the  sale  will  be  the  best  thing  for  all  concerned,  and 
that  a  prudent  owner,  if  present,  would  sell  under 
the  same  circumstances;  but  he  will  be  justified  in 
selling  only  by  a  legal  necessity.  Hence,  in  the  case 
of  Brj'ant  v.  Com.   Ins.   Co.,^  where   a  vessel  was 

law,  and  by  the  law  of  England  also ;  but  it  is  allowed  in  those 
cases  only  in  which  it  is  made  in  furtherance  of  this  purpose.  The 
sale  of  a  part  has  been  allowed ;  but  it  was  allowed  in  a  case  in  which 
the  hypothecation  of  the  whole  would  have  been  lawful,  and  because 
it  was  considered  as  a  matter  equivalent  to  such  hypothecation.  Hy- 
pothecation imports  a  pledge  without  immediate  change  of  posses- 
sion :  it  gives  a  right  to  the  party  who  makes  advances  upon  the 
faith  of  it,  to  have  the  possession,  if  his  advances  are  not  repaid 
at  the  stipulated  time,  but  it  leaves  to  the  proprietor  of  the  things 
that  may  be  hypothecated,  the  power  of  making  such  repayment, 
and  thereby  freeing  thorn  from  the  obligation.  It  is,  therefore, 
contrary  to  the  nature  of  this  proceeding,  and  consequently  con- 
trary to  the  duty  and  beyond  tlie  power  of  the  master  to  engage 
that  the  lender  shall  at  all  events  have  the  goods  delivered  at  their 
place  of  destination  to  him  or  his  agents,  to  be  there  sold  and  dis- 
posed of  by  him  or  them,  without  reserving  the  right  of  redemp- 
tion to  the  merchant ;  and  such  an  cnn;af'cment  will  not  be  oblinfa- 
tory  upon  the  merchant,  but  he  will  still  have  the  right  to  take 
his  goods  upon  payment  of  the  money  for  which  they  may  have 
been  engaged."     Abbott  on  Shipping,  pp.  448,  449. 

'  13  Pick.  043.  "It  would  be  clear,"  said  Putnam,  J.,  "  that 
if  the  master  assumed  to  act  for  the  owners  and  underwriters  when 
they  were  present,  or  .«o  near  as  to  be  consulted  in  regard  to  the 
disposition  of  the  property,  his  acts  under  such  assumption  of 
authority  would  not  bind  tli(;m.  lie  might  be  justified,  if  the 
nece8.sify  were  so  urgent  as  to  require  immediate  action  ;  as  if  the 
goods  would  probably  perish  or  be  destroyed  before  the  directions 
of  the  owners  could  be  obtained.  But  if  the  goods  were  not 
perishable  or  damaged,  and  might  be  preserved  in  reasonable  safety 
until  tiie  owners  and  underwritcra  could  be  consulted,  he  should 


256  THE   LAW   OF   siiirriNG. 

strandotl  on  the  coast  of  Virginia,  and  the  cargo  was 
landed  without  damage,  and  was  not  of  a  perishable 
nature,  and  might  have  been  kept  in  reasonable 
safety  until  the  owners  and  insurers,  who  lived  in 
Massachusetts,  could  be  heard  from,  it  was  held,  that 
the  master  had  no  authority  to  sell  the  cargo  and 
break  up  the  voyage,  without  waiting  until  the 
owners  and  insurers  could  be  consulted. 

257.  If  the  master  is  unable  to  deliver  the  cargo 

preserve  and  guard  them  ;  and  in  such  case  be  would  have  no  more 
authority  to  break  up  the  voyage  and  sell  the  cargo,  than  the  mate 
or  a  stranger  would  have.  And  notwithstanding  he  conducted  him- 
self honestly,  yet  if  the  other  elements  which  make  up  this  legal 
necessity  were  wanting,  the  owners  and  underwriters  would  not 
he  bound.  The  question  therefore  is,  whether  or  not  there  was  a 
legal  necessity  for  the  master  to  terminate  the  voyage  and  sell  the 
cargo.  The  acting  merely  in  good  faith,  and  for  the  interest  of 
all  concerned,  will  not  exempt  the  sale  of  goods  from  the  character 
of  a  tortious  conversion,  for  which  the  ship-owner  and  purchaser 
are  responsible."  See  also  3  Kent,  134;  Schieffelin  v.  N.  York 
Ins.  Co.,  9  John.  21;  Scarle  v.  Scovell,  4  John.  Ch.  218;  Saltus 
v.  Ocean  Ins.  Co.,  Id.  107  ;  American  Ins.  Co.  v.  Centre,  4  Wend. 
52 ;  Freeman  v.  East  India  Co.,  4  Barn.  &  Aid.  617 ;  Halwerson 
V.  Cole,  1  Spears  (S.  C),  321.  In  this  latter  case  it  was  said  by 
Evans,  3.,  per  curia,  that  "cases  might  arise  in  which  there  may 
exist  a  necessity  for  disposing  of  a  damaged  cargo.  If  it  be  for 
the  general  benefit,  it  may  be  a  subject  of  general  average.  But 
in  all  other  cases,  the  shipper  has  a  right  to  insist  on  a  delivery  of 
the  goods  as  a  condition  precedent  to  the  payment  of  freight.  It 
is  no  answer  to  say  the  ship-owner  acted  Luna  fide,  and  the  sale 
was  for  his  benefit.  He  has  commissioned  no  one  to  judge  for  him 
on  that  subject.  He  may  prefer  to  have  the  goods  in  a  damaged 
state.  It  is  his  right,  and  cannot  be  withheld  from  him  without 
a  forfeiture  of  the  demand  for  freight.  The  opinion  of  this  Court 
is,  that  the  Circuit  decision  was  rlgbt;  and  the  motion  is  dismissed," 
Sec  also  Poole  v.  The  Protection  Ins.  Co.,  14  Com.  47. 


COMMEXCEMEXT,  ETC.,  OF  THE  VOYAGE.  257 

at  the  port  of  destination  from  the  disasters  of  the 
voyage,  that  is,  if  the  ship  is  disabled,  and  another 
cannot  be  procured  at  the  port  of  necessity,  or  at  a 
contiguous  port,  if  the  cargo  is  perishable,  it  would 
seem  to  be,  from  the  very  nature  of  the  case,  the 
proper  course  to  sell  it.  If,  on  the  other  hand,  it  is 
not  perishable,  the  master  must  store  it,  and  inform 
the  shipper  as  soon  as  possible.^     And  he  is  not  jus- 

'  Saltus  V.  Ocean  Ins.  Co.,  12  John.  107;  Treadwell  v.  Union  Ins. 
Co.,  G  Cowen,  270 ;  Poole  v.  Protection  Ins.  Co.,  uhi  sup. ;  Jordan  v. 
Warren  Ins.  Co.,  1  Story's  R.  342.  The  observations  upon  this 
subject,  of  Lord  Tenterden,  are  deserving  of  attention.  "  What, 
then,"  he  inquires,  "is  the  master  to  do,  if  by  any  disaster  hap- 
pening in  the  course  of  the  voyage,  he  is  unable  to  carry  the  goods 
to  the  place  of  destination,  or  to  deliver  them  there  ?  To  this,  as 
a  general  question,  I  apprehend  no  answer  can  be  given.  Every 
case  must  depend  upon  its  own  peculiar  circumstances.  The  con- 
duct proper  to  be  adopted  with  respect  to  perishable  goods,  will  be 
improper  with  respect  to  a  cargo  not  perishable.  One  thing  may  be 
fit  to  be  done  with  fish  or  fruit,  and  another  with  timber  or  iron  ;  one 
method  may  be  proper  in  distant  regions,  another  in  the  vicinity  of  the 
merchant;  one  in  a  frequented  navigation,  another  on  unfrequented 
shores.  The  wreck  of  the  ship  is  not  necessarily  followed  by  an 
impossibility  of  sending  forward  the  goods;  and  docs  not  of  itself 
make  their  sale  a  measure  of  necessity  or  expedience :  much  less 
can  the  loss  of  the  season,  or  of  the  proper  course  of  the  voyage,  have 
this  effect.  An  unexpected  interdiction  of  commerce,  or  a  sudden 
war,  may  defeat  the  adventure,  and  oblige  tin;  ship  to  stop  on  her 
course ;  but  neither  of  these  events  doth  of  itself  alone  make  it 
necessary  to  sell  the  cargo  at  the  place  to  which  it  may  be  proper 
for  the  ship  to  resort.  In  these  and  many  other  cases,  the  master 
may  be  discharged  of  his  obligation  to  deliver  tlie  cargo  at  the 
place  of  destination,  but  it  docs  nut  tlicreforo  follow  that  he  is 
authorized  to  sell  it,  or  oiiglit  to  do  so.  What  then  is  he  to  do  ? 
In  general,  it  may  bo  Baid,  ho  is  to  do  that  wliich  a  wise  ami  pru- 
dent man  will  think  most  conducive  to  the  benefit  of  all  concorntMl. 
In  so  doing,  he  may  expect  to  bo  safe,  because  the  merchant  will 
not  have  reason  to  be  dissatisfied  ;  but  wliat  this  thing  will  be  no 

17 


258  THE    LAW    OF    SIIirPING. 

tified  ill  selling  the  cargo  at  the  port  of  necessity,  by 
showing  that  he  acted  in  good  laith  and  under  the 
advice  of  surveyors  called  by  hira,  who  reported  it 
damaged,  and  recommended  a  sale  for  the  benefit  of 
all  concerned,  provided  that  no  necessity  existed  for 
a  sale.  The  master  has  no  right  to  sell  the  cargo, 
or  any  portion  thereof,  unless  in  a  case  of  moral 
necessity,  in  order  to  prevent  a  greater  loss  to  the 
shippers.     If  such  necessity  is  not  made  to  appear. 


general  rules  can  teach.    Some  regard  may  be  allowed  to  the  interest 

of  the  ship  and  of  its  owners,  but  the  interest  of  the  cargo  must 

not  be  sacrificed  to  it.     Transhipment,  for  the  place  of  destination, 

if  it  be  practicable,  is  the  first  object,  because  that  is  in  furtherance 

of  the  original  purpose ;  if  that  be  impracticable,  return  or  a  safe 

deposit  may  be  expedient.     The  merchant  should  be  consulted,  if 

possible.     A  sale  is  the  last  thing  that  the  master  should  think  of, 

because  it  can  only  be  justified  by  that  necessity  which  supersedes 

all  human  laws.     If  he  sell  without  necessity,  his  owners,  as  well 

as  himself  will  be  answerable  to  the  merchant,  and  they  will  be 

answerable  if  he  places  the  goods  at  the  disposal  of  a  vice-admiralty 

Court  in  a  British  colony,  and  they  are  sold  under  an  order  of  the 

Court,  such  a  Court  having  no  authority  to  order  a  sale.    And  the 

persons  who  buy  under  such  circumstances,  will  not  acquire  a  title 

as  against  the  merchant,  but  must  answer  to  him  for  the  value  of 

the  goods."    Abbott  on  Shipping,  pp.  449-451.    See  also  3  Kent, 

224;  Palmer  v.  Lorillard,  16  John.  348;  Everett  v.  Saltus,  15 

Wend.  474 ;  Caneran  v.  Meaburn,  1  Bing.  R.  243  ;  Robertson  v. 

Clark,  Id.  445  ;  Smith  v.  Martin,  6  Binn.  R.  262 ;  Scull  v.  Biddle, 

2  Wash.  C.  C.  R.  150 ;  Dodge  v.  Union  Ins.  Co.,  17  Mass.  R. 

478  ;  Whitney  V.  Firemen's  Ins.  Co.,  18  John.  R.  208;  Myers  v. 

The  Harriet,  Adm.  E.  D.   P.  July,  1848;   2   Wharton's  Dig. 

662;  Stevens  &  Ben.  on  Av.  285;  2  Story's  R.  471;  13  Peters, 

387;  2  Pick.  249;  3  Sum.  27;  Edw.  Ad.  118.    These  latter  cases 

as  to  the  materiality  of  the  hona  fide  action  of  the  master,  in 

making  the  sale.     Pope  v.  Nickerson,  3  Story's  C.  C.  R.  465 ; 

Lawrence  v.  The  New  Bedford  Com.  Ins.  Co.,  2  Story's  R.  471. 


COMMENCEMENT,  ETC.,  OF  THE  VOYAGE.   259 

the  advice  of  surveyors  is  no  justification,  and  he 
and  his  owners  are  answerable  to  the  merchant.^ 

258.  Whilst  the  general  rule  is,  as  we  have  seen, 
that  the  master  must  stow  the  cargo,  and  immediately 
inform  the  shipper,  where  it  is  sound,  and  in  no 
danger  of  precipitate  decay,  it  is  proper  to  observe, 
that  the  rule  is  not  absolutely  inflexible.  Circum- 
stances may  arise,  w^hich  would  amount  to  a  moral 
necessity,  and  render  it  the  duty  of  the  master  to 
sell  the  cargo,  which  he  has  no  means  of  forwarding 
to  the  port  of  destination.  The  port  of  necessity 
may  be  at  such  a  distance  from  the  port  of  shipment, 
the  means  of  communication  so  difficult  and  irregular, 
and  the  cargo  of  such  a  nature,  that  the  market  for 
it  might  be  lost,  before  the  shipper  could  interfere. 
In  such  a  case  the  master  would  be  bound  to  sell,  to 
prevent  a  greater  loss  to  the  owner.^ 

259.  In  the  case  of  Lawrence  v.  The  New  Bed- 
ford Com.  Ins.  Co.,^  it  was  held,  that  when  a  ship  is 
abandoned  for  a  total  loss,  the  master  cannot  sell  the 
cargo,  and  invest  the  proceeds  in  other  goods,  unless 
he  be  justified  by  necessity,  or  by  a  high  degree  of 
expediency.     And  this  expediency  must  be  judged 

'  Myers  v.  Baymore,  10  Barr,  R.  114;  Popo  v.  Nickorson, 
supra;  Gordon  v.  Mass.  Ins.  Co.,  2  Pick.  249;  Smith  v.  Martin, 
G  Binn.  202;  5  Peters'  R.  021;  12  Pick.  279;  1  Bing.  248. 

»  Popo  V.  Nickcrson,  siipm  ;  The;  Cratitudine,  3  Rob.  240,  259, 
201  ;  Morris  v.  Robinson,  3  B.  &  C.  190  ;  Hunter  v.  Parker,  7 
M.  &  Wil.  340,  342;  Bryant  v.  Com.  Ins.  Co.,  G  Pick.  131.  It 
was  held,  in  this  latter  case,  tliat  a  usage  for  tho  master  of  a 
vessel  stranded,  to  sell  tho  cargo  without  necessity,  is  void. 

»  Story's  R.  471. 


2C0  THE     LATT     OF     SIIirPTNG. 

of  -with  reference  to  the  voyage  and  the  nature  of 
the  propert}'.  If  the  sale  cannot  be  justified  upon 
these  grounds,  it  will  be  treated  as  a  mere  tortious 
conversion. 

260.  Tf,  however,  in  such  a  case,  the  master  does 
make  a  sale,  without  such  necessity  or  high  expe- 
diency, and  it  turns  out  to  be  advantageous  to  the 
parties  interested,  and  they  adopt  the  acts  of  the 
master,  and  receive  the  proj^erty  without  reserve  or 
objection,  that  will  amount  to  a  ratification,  and 
they  must  then  take  the  property  or  its  proceeds 
cum  onere.  But  if  they  receive  the  property,  or  its 
proceeds,  reserving  all  their  rights,  and  waiving  no 
objections,  then  they  are  entitled  to  receive  the  pro- 
ceeds, without  any  charges,  if  the  proceeds  do  not 
yield  a  profit  to  them  beyond  the  fair  value  of  the 
property  shijDped,  and  so  improperly  converted,  as  it 
would  have  been  on  its  arrival  at  the  original  i)ort 
of  destination.  But  if  it  does  yield  such  a  profit, 
and  the  master  acted  without  fraud,  he  is  entitled 
to  be  paid  a  reasonable  compensation  and  his  reason- 
able expenses,  not  exceeding  such  profit/ 

260  a.  It  must  be  understood,  that  while  the 
owners  of  the  vessel  are  generally  responsible  for 
the  misconduct  of  the  master  committed  in  their 
business,  to  third  persons,  or  strangers,  they  are  not 
so  responsible  to  their  cesiais  que  trust,  or  co-part- 
ners, or  joint  shareholders,  provided  they  use  due 
care  in  selecting  him.^ 

'  Stor/s  R.  471.  «  Joy  v.  Allen,  2  W.  &  M.  303. 


COMMENCEMENT,  ETC.,  OF  THE  VOYAGE.   2G1 

2G1.  The  master  is  bound  to  take  all  possible  care 
of  the  cargo,  during  the  progress  of  the  voyage.  If 
the  ship  is  stranded,  the  duties  and  liabilities  of  the 
owners  and  master,  as  common  carriers,  are  not 
varied  by  that  event,  but  continue  the  same  as  be- 
fore. They  are  bound  to  show  that  no  human  dili- 
gence or  skill  could  save  the  property  from  being 
lost  by  the  shipwreck,  but  that  it  perished  with  the 
wreck.'     Ahev  the  damage  to  the   goods  is   esta- 

'  King  V.  Sbeppard,  7  Law  R.  275 ;  S.  C.  3  Story's  R.  349 ; 
Abbott  on  Shipping,  454.  Seo  also,  Poole  v.  Protection  Ins.  Co., 
14  Conn.  47 ;  Davidson  v.  Gywnne,  12  East.  381.  King  v.  Sbep- 
pard, supra,  was  a  case  of  tbe  loss  of  a  bos  of  specie,  containing 
ten  thousand  dollars  in  gold,  shipped  in  the  autumn  of  1842,  at 
New  York,  on  board  the  ship  North  America,  Hall,  master,  for 
Mobile.  The  ship  struck  on  the  Bahama  Banks,  and  knocked  off 
her  rudder,  in  consequence  of  which  she  became  unmanageable. 
The  master,  who  liad  hitherto  kept  the  gold,  together  with  another 
box  containing  $1000  in  silver,  in  his  state  room,  now  ordered  his 
mates  to  remove  it  to  the  run,  which  he  deemed  a  safer  place,  as 
the  crew  would  necessarily  be  in  the  cabin  for  the  purpose  of 
fitting  a  temporary  rudder.  This  was  accordingly  done,  and  the 
boxes  stowed  in  the  run,  covered  with  some  boxes  of  powder,  &c. 
The  run  was  not  separated  from  the  main  IidUI.  The  ship  went 
on  shore  again,  in  the  course  of  two  or  three  days,  on  the  Florida 
Reef,  where,  after  lying  several  days,  daring  which  attempts  were 
made  to  got  iier  <iff,  she  bilged  about  ten  o'clock  in  the  evening. 
The  wreckers  were  now  admitted  on  board  to  save  the  cargo,  some 
forty  or  fifty  of  whom  wfnt  immediately  into  the  hold  and  c(im- 
mcnccd  breaking  out.  The  second  mate  was  put  into  the  run  to 
look  after  the  specie,  but  did  not  get  down  until  the  wreckers  had 
been  there  fifteen  or  twenty  minutes.  There  was  then  two  feet  of 
water  where  the  specie  had  been  deposited.  The  socniid  mate 
stood  over  the  place  a  large  part  of  an  hour,  and  when  the  cap- 
tains of  the  wrei'kcrs  came  for  the  gold,  pointed  out  to  them  where 
he  had  jilaced  it.  Search  was  made  and  the  silver  found,  but  not 
the  gold,  which  has  never  been  heard  of  since.     Search  was  made 


2G2  THE   LAW  OF   siiirriNG. 

blished,  the  onits  prohandl  lies  upon  the  carrier  to 
show  that  it  was  occasioned  by  one  of  the  perils 
from  which  he  was  exempted  by  the  bill  of  lading. 
But  even  if  the  carrier  does  show  that  the  particular 
loss  or  damage  arose  from  the  dangers  or  accidents 
of  the  navigation,  it  is  still  competent  for  the  ship- 
pers to  show  that  it  might  have  been  avoided  by 
the  exercise  of  reasonable  skill  and  attention  on  the 
part  of  the  persons  employed  in  the  conveyance  of 


for  it  through  the  ship,  and  one  of  the  wrecking  vessels  alongside. 
No  embezzlement  or  fraud  was  shown  on  the  part  of  the  master. 
The  part  of  the  cargo  saved  was  carried  to  Key  "West  and  libelled 
for  salvage.  The  ship  was  a  total  loss.  This  action  was  brought 
against  the  owners  of  the  ship  to  recover  the  value  of  the  gold. 

It  was  contended  for  the  respondents,  that  as  the  gold  Avas  m 
all  probability  stolen  by  the  wreckers  in  the  confusion  of  the 
night,  they  were  excused  by  the  exception  in  their  bill  of  lading 
of  the  perils  of  the  seas.  That  this  loss  was  a  peril  of  the  sea, 
within  the  meaning  of  the  law,  as  it  was  the  direct  consequence 
of  such  peril,  and  happened  while  the  ship  and  cargo  were  all  lost, 
except  as  they  might  be  saved  by  those  casually  in  the  neighbor- 
hood.  That  if  the  captain  acted  bona  fide,  and  placed  the  gold  in 
the  run,  believing  it  the  safest  place,  negligence  could  not  be  im- 
puted to  him. 

For  the  libellants,  it  was  contended,  on  the  other  hand,  that  the 
owners  were  liable  as  common  carriers,  notwithstanding  the  hap- 
pening of  the  peril,  if  the  loss  was  not  the  immediate  and  neces- 
sary consequence,  and  that  in  this  case  it  was  to  be  attributed  to 
gross  negligence  on  the  part  of  the  master. 

Judge  Story  decided  the  case  in  accordance  with  the  principles 
stated  in  the  text.  lie  held,  that  the  wreckers  were  persons  act- 
ing in  the  employ  of  the  master,  and  not  piratically ;  and  that  the 
master  in  this  case  did  not  exercise  proper  care  and  diligence  in 
regard  to  the  property,  but  on  the  contrary,  was  guilty  of  great 
negligence.  He  ordered  a  decree  to  be  entered  for  the  libellants, 
for  the  amount  of  the  gold,  with  interest  from  the  time  when  pro- 
ceedings for  salvage  were  instituted  at  Key  West. 


COMMENCEMENT,    ETC.,    OF    TH-E    VOYAGE.      263 

the  goods ;  for  then  it  is  not  deemed  to  be,  in  the 
sense  of  the  law,  such  a  loss  as  will  exempt  the  car- 
rier from  liability,  but  rather  a  loss  occasioned  by 
his  negligence  and  inattention  to  his  duty.  True,  it 
occurs  directly  by  a  peril  of  the  sea,  but  it  might 
have  been  avoided  by  skill  and  diligence  at  the  time, 
and,  therefore,  the  carrier  is  liable.^ 

262.  If  the  nature  of  the  cargo  is  such  that  it  re- 
quires to  be  ventilated,  the  master  must  see  that  it 
is  done.  If  the  goods  are  damaged  or  destroyed  by 
rats  during  the  voj^age,  the  carrier  and  not  the  in- 
surer is  responsible,  even  though  there  were  cats  on 
board.  Such  damage  or  destruction  is  not  within 
the  usual  exceptions  in  the  bill  of  lading,  and  the 
carrier  is  not  exonerated.  But  if  the  rats  make  a 
hole  in  the  ship,  through  which  water  comes  in  and 
damages  the  cargo,  and  no  negligence  attaches  to  the 
master,  the  insurer,  and  not  the  carrier,  is  responsi- 
ble.    It  is  the  result  of  a  peril  within  the  policy.^ 

»  Clark  V.  Barnwell,  12  How.  U.  S.  R.  273  ;  Muddle  v.  Stride, 
9  Car.  &  P.  380. 

'  Lavaroni  v.  Drury,  American  Law  Register,  No.  iii.,  p.  IT-t ;  Gar- 
rigues  v.  Coxc,  1  Binn.  R.  592 ;  Dale  v.  Hall,  1  Wils.  281.  The 
foreign  authorities  all  concur  in  holding  the  master  exempt,  if  he 
keeps  cats.  Kmcrigon,  vol.  i.,  pp.  375, 370 ;  Consulato  del  Marc,  cc. 
05,  GO ;  Roccus,  do  Navibus,  note,  58.  But  in  the  recent  case  of  La- 
varoni V.  Hrury,  supra,  where  goods  were  put  on  board  a  ship  to 
be  carried  })y  .sea,  for  liirf,  under  a  bill  of  lading,  containing  the 
usual  exception  of,  "the  act  of  God,  the  Queen's  cneuiies,  fire 
and  all  other  dangers  and  accidents  of  the  seas,  rivers  and  naviga- 
tion, &c.,  excepted,"  were  damaged  by  rats  during  the  voyage,  it 
was  held  to  be  no  defence  to  an  action  by  the  owner  of  the  goods, 
that  the  master  had  kept  cats  on  board.  Pollock,  C.  B.,  however, 
after  pronouncing  the  judgment  of  the  Court  of  Exchequer,  ob- 


204  THE    LAW    OF    SHIPPING. 

This  distinction  may  not  rest  upon  grounds  that  are 
entirely  satisfactorj^,  or  perhaps  consistent.  In  both 
cases,  the  loss  or  damage  proceeds  from  the  rats.  In 
the  one  case,  the  injury  is  done  by  them  directly; 
in  the  other  indirectly, — that  is,  by  a  leak  which 
they  caused.  If,  however,  the  rule,  which  obtains 
in  the  law  of  insurance,  causa  proxima,  non  remota 
spectatur,  is  equally  applicable  to  the  law  of  carriers, 
the  apparent  difficulty  involved  in  this  distinction  is 
disposed  of  At  all  events,  it  reconciles  the  other- 
wise conflicting  doctrines  of  the  adjudged  cases. 

263.  The  carrier  is  held  responsible  for  damage 

served,  that  if  rats  had  made  a  hole  in  the  ship  through  which 
water  came  in  and  damaged  the  cargo,  it  might  very  likely  be  a 
ease  of  sea  damage.  The  judgment  of  the  Court  did  not  touch 
that  question. 

This  question,  with  respect  to  damage  caused  by  rats,  has  been 
treated  with  great  gravity,  by  great  Judges,  and  seems  to  be 
deemed  by  all  writers  upon  the  law  of  carriers,  as  a  subject  well 
worthy  the  investigation  of  all  liberal  and  enlightened  minds.  "  It 
seems,"  says  Judge  Story,  Story  on  Bailments,  s.  513,  "  that  a 
loss  occasioned  by  a  leakage,  which  is  caused  by  rats  gnawing  a 
hole  in  the  bottom  of  the  vessel,  is  not  in  the  English  law  deemed 
a  loss  by  a  peril  of  the  sea,  or  by  inevitable  casualty.  But  if  the 
master  has  used  all  reasonable  precautions  to  prevent  such  a  loss, 
as  hy  haviiKj  a  cat  on  hoard,  it  is,  by  the  general  consent  of  the 
writers  upon  the  foreign  maritime  law,  held  to  be  a  loss  by  a  peril 
of  the  sea  or  inevitable  accident."  See  also,  Curtis's  Merchant 
Seamen,  197,  216,  219;  Abbott  on  Shipping,  4.54,  4.55;  Angell 
on  Carriers,  168-171 ;  3  Kent,  300,  .301;  Aymer  v.  Astor,  6 
Cowen,  K.  266;  Hunter  v.  Potts,  4  Camp.  N.  P.  203  ;  Ewart  v. 
Street,  2  Bail.  (S.  C.)  R.  161.  In  this  case,  it  was  said  by  liar- 
per,  J.,  that  ''  in  all  cases  of  injury  to  vessels  from  the  gnawing  of 
rats,  the  injury  originates  from  causes  that  may  be  foreseen,  or 
from  the  agency  of  man." 


COMMENCEMENT,    ETC.,    OF    THE    VOYAGE.      265 

ensuing  from  the  destruction  of  a  ship's  bottom  by 
worms  in  the  course  of  the  voyage.  Such  damage 
is  not  deemed  to  have  arisen  from  a  peril  of  the  sea, 
but  from  the  ordinary  wear  and  decay  of  the  vessel. 
And  the  masters  and  owners  are  responsible  for 
every  injury  that  might  have  been  prevented  by  hu- 
man foresight  or  care.^ 

264.  The  master  and  owners  are  liable  for  goods 
stolen  or  embezzled  on  board  the  ship  by  the  crew 
or  any  other  persons,  although  no  negligence  or 
fraud  may  be  imputable  to  them.  As  we  have 
elsewhere  observed,  the  rigor  of  the  law  in  this 
respect  arises  from  reasons  of  public  policy,  and 
to  prevent  the  combinations  that  might  be  made 
with  thieves  and  robbers.  In  such  case,  the  carrier 
must  answer  for  the  value  of  the  missing  goods, 
according  to  the  clear  net  value  of  the  goods  of  the 
like  kind  and  quality,  at  the  port  of  delivery. 
Whether  he  is  also  to  pay  interest  from  the  time 
when  the  goods  ought  to  have  been  delivered,  de- 

'  Story  on  ]5ailmcnts,  s.  513;  Park.  Ins.,  cb.  3;  Rolil  v.  Parr, 
1  Esp.  II.  444  ;  Martin  v.  Salem  Ins.  Co.,  2  Mass.  R.  429 ;  Cope- 
land  V.  The  N.  E.  Marine  Ins.  Co.,  2  Met.  R.  432  ;  Hazard  v.  N. 
E.  In.o.  Co.,  1  Hum.  R.  218;  S.  C,  8  Petcr.s'  R.  .557;  Abbott  on 
Shipping,  455  ;  Joy  v.  Allen,  2  W.  &  M.  303.  In  the  case  of 
Dcpeyetcr  v.  Columbian  Ins.  Co.,  2  Caincs'  II.  85,  00,  Livingston, 
J.,  in  delivering  the  opinion  of  the  Court,  said,  "I  do  not,  by 
anything  that  has  been  said,  mean  to  be  understood  as  subscrib- 
ing to  the  nisi  prius  opinion  of  Lnrd  Kcnyon,  which  was  cited 
from  1  E.sp.  Rep.  444,  '  that  if  a  Hhijj's  bnttoni,  during  a  voy- 
age, be  eaten  by  worms,  so  that  she  be  incapable  of  proceeding, 
and  be  condemned,  this  is  not  a  loss  within  the  policy.'  It  is 
not  necessary  to  decide  the  question  now."  The  doctrine,  how- 
ever, seems  well  settled  both  in  England  and  this  country. 


2G6  THE    LAW    OF    SHIPPING. 

pciids  on  the  circumstances  of  the  case ;  but  if  no 
fraud  or  misconduct  is  imputable  to  the  master, 
interest  will  not  be  allowed/ 

2G5.  If  the  cargo  is  injured  by  a  leak  in  the  ves- 
sel, which  is  not  occasioned  by  perils  of  the  seas,  but 
from  sailing  in  fiiir  weather  against  a  rock,  or  shal- 
low, known  to  expert  mariners,  or  if  the  goods  are 
lost  or  injured  from  being  stowed  in  a  part  of  the. 
vessel  where  the  master  is  not  authorized  to  stow 
them,  the  owner  will  be  responsible.^  In  the  case  of 
Proprietors  of  the  Trent  &  Mersey  Navigation  v. 
Wood,"*  when,  in  a  voyage  from  Hull  to  Gainsborough, 
a  vessel  was  sunk  in  the  river  Trent  by  striking 
against  the  anchor  of  another,  which  anchor  lay 
under  water,  and  without  a  buoy,  whereby  some 
goods  in  the  former  were  inj  ured,  the  owners  thereof 
were  held  responsible  for  the  injury. 

266.  It  is  universally  admitted,  as  we  have  else- 
where observed,  that  in  a  case  of  necessity,  when 
the  repairs  of  the  ship,  or  other  expense,  necessary 
to  enable  the  master  to  prosecute  the  voyage  and 
deliver  the  cargo  at  the  port  of  destination,  cannot 
be  otherwise  obtained,  the  master,  in  the  exercise  of 

*  Schieffelin  v.  Harvey,  6  John.  R.  170;  Watkinson  v.  Laugh- 
ton,  8  John.  11.  213 ;  Roccus,  note  10.  It  is  not  such  embezzle- 
ment as  will  forfeit  a  mariner's  wages,  if  he  sells  part  of  the 
cargo,  by  the  direction  of  the  mate,  during  the  permanent  ab- 
sence of  the  master,  in  order  to  procure  necessary  provisions  for 
the  vessel     The  Sloop  Solon,  Crabbe's  R.  17. 

"  Curtis's  Merchant  Seamen,  198 ;  Morse  v.  Slue,  1  Vent.  R. 
238;  Roccus,  note  55;  Eraerigon,  torn.  1,  p.  373;  The  Rebecca, 
Ware's  R.  188  ;  Abbott  on  Shipp.  455. 

3  Cited  in  Abbott,  p.  455. 


COMMEXCEMENT,  ETC.,  OF  THE  VOYAGE.   267 


L,       x^  ±  yj., 


a  sound  discretion,  may  either  hypotliecate  the  whole 
cargo  or  sell  a  part  for  the  accomplishment  of  the 
voyage.  But  if  the  repairs  of  the  ship  produce  no 
benefit  or  prospect  of  benefit  to  the  cargo,  the  mas- 
ter can  neither  sell  nor  hypothecate ;  but  though  the 
prospect  of  benefit  may  be  more  direct  and  imme- 
diate to  the  ship,  it  may  still  be  for  the  preservation 
and  conveyance  of  the  cargo ;  and  when  it  is  so,  it 
is  justly  to  be  considered  as  done  for  the  common 
benefit  of  both  ship  and  cargo.^ 

207.  When  such  sale  is  made,  that  is,  of  part  of 
the  cargo  to  pay  for  repairs,  the  ship-owners  become 
indebted  for  the  sum  so  applied,  and  the  owners  of 
the  cargo  have  also  a  lien  upon  the  vessel.  The 
claim  upon  the  owners  is  a  personal  claim  pro  tanto, 
with  the  auxiliary  security  of  the  lien  on  the  ship 
and  freight.     This  personal  liability,  and  this  lien 

•  Abbott  on  Sbipp.  455;  Ross  v.  Ship  Active,  2  Wash.  C.  C. 
R.  226 ;  Joy  v.  Allen,  2  W.  &  M.  303 ;  The  Gratitudine,  3  Rob. 
Ad.  R.  240;  The  Ship  Packet,  3  Mason,  255;  The  Zephyr,  3 
Mason,  341 ;  United  Tns.  Co.  v.  Scott,  1  John.  106  ;  Fontaine 
V.  Col.  Ins.  Co.,  9  John.  29 ;  Amer.  Ins.  Co.  v.  Corter,  3 
Paige,  323  ;  Searle  v.  Scoville,  4  John.  Ch.  222  ;  Pope  v.  Nick- 
crson,  3  Story's  C.  C.  R.  When  a  part  of  the  cargo  is  sold,  says 
Lord  Tenterden,  Abb.  on  Shipp.,  supra,  if  the  ship  reach  the 
place  of  destination,  the  merchant  \v\\\  be  entitled  to  receive  the 
clear  value  for  which  the  goods  might  have  been  sold  at  that 
place  ;  or  he  may  take  the  sum  for  which  the  goods  actually 
sold,  and  if  he  is  content  to  do  so,  he  may  deduct  that  sum 
from  the  money  payable  for  the  freight  of  his  other  goods;  and 
this,  although  tlic  owner  may  have  assigned  the  freight  to  a  third 
person,  and  the  goods  were  sold  witliout  an  urgent  necessity." 
See  also,  Campbell  v.  Thompson,  1  Stark.  490 ;  Myers  v.  Ray- 
more,  10  Rarr's  R.  lit. 


Oi\Q 


-Ob  THE    LAW    OF    SUIPriNG. 

attach  to  the  owners  and  the  thing,  coiusfmiti,  v^hon 
the  appropriation  is  made,  and  from  that  moment 
the  ohhgation  becomes  positive  and  unequivocal.' 
Upon  the  question  whether  the  liabihty  of  the  own- 
ers in  2)ersonam  is  absolute,  or  is  aflected  with  the 
future  liite  of  the  ship  on  the  voyage,  there  has  been 
promulgated  a  variety  of  doctrines  and  opinions. 

268.  The  better  opinion,  however,  is,  that  if  the 
ship,  relieved  at  the  expense  of  the  goods  pledged 
or  sold,  should  afterwards  perish,  with  the  residue 
of  the  cargo  on  board,  before  arrival  at  the  port  of 
destination,  the  owner  is  not  entitled  to  payment 
for  the  goods  sold.  The  merchant  is  not  placed  in 
a  worse  situation  by  the  sale  of  the  goods,  than  if 
they  had  remained  on  board  the  ship.^ 

*  Pope  V.  Nickerson,  3  Story's  C.  C  R..  465  ;  Emerigon,  Des 
Contrats  a  la  Grosse,  cb.  4,  s.  9,  p.  445  ;  Valin,  Corura.,  torn.  1, 
liv.  2,  tit.  8,  art.  2,  p.  5G8,  509 ;  Pothier,  Contrats  Marit.  n.  34, 
n.  72. 

''  3  Kent,  212,  213  ;  Abbott  on  Shipp.  456 ;  Consolato  del 
Mare,  cb.  105 ;  Laws  of  Oleron,  art.  25 ;  Ordinance  of  Antwerp, 
art.  19 ;  Emerigon,  siqira,  446 ;  Boulay  Paty  Droit  Comni.,  torn, 

1,  tit.  3,  p.  263  to  299.  But  contra,  Potbicr,  supra,  n.  34, 
n.  72;  Valin,  supra,  p.  568,  569;  Ordinance  of  Wisbury,   tit. 

2,  art.  2 ;  Kuricke,  Jus.  Mar.  Hanscati,  tit.  6,  art.  21 ;  Cleirac. 
Ordin.  d'Olcron,  art.  22,  p.  88,  n.  2;  Pope  v.  Nickerson,  supra. 
"It  seems  to  me,"  says  Judge  Story,  "upon  principle,  with 
reference  to  our  law,  tbat  tbc  opinions  of  Valin  and  Potbicr, 
are  entitled  to  very  great  weight.  As  has  been  already  sug- 
gested, the  limitations  of  the  responsibility  of  the  owners  of  the 
ship,  are  mere  qualifications  of  the  antecedent  rule  of  our  law,  and 
do  not  change  tbe  nature  of  the  rule.  The  owners  are,  and  ought 
to  be  held  personally  bound  to  pay  all  the  lawful  contracts  of  the 
master,  to  the  full  amount  thereof,  not  exceeding  their  interest  in 


COMMEXCEMEXT,  ETC.,  OF  THE  VOYAGE.   269 


Lj  X.    J.    ^., 


2G9.  The  shippers,  it  must  be  understood,  are  iiot 
confiued  to  their  remedy  against  the  ship-owners, 
but  they  have  a  right  of  contribution  over  against 
the  other  owners  of  the  cargo.  "  Whether  this  right 
of  contribution  would  entitle  the  party  to  the  full 
benefit  of  having  it  deemed  a  general  average  for  all 
purposes,  or  whether  the  loss  by  such  a  sale  would 
be  recoverable  under  a  common  policy  of  insurance, 
are  questions  with  which  I  do  not  meddle,  and  which 
may  depend  upon  other  principles.  But  I  confess 
myself  strongly  inclined  to  the  opinion  of  Lord 
Stowell;  and  sitting  in  the  Admiralty,  with  the 
whole  property  under  the  jurisdiction  of  the  Court, 
I  should,  upon  an  application  by  the  party,  deem  his 
right  of  contribution  good  against  the  other  shippers, 
and  not  turn  him  round  to  a  remedy  exclusively 
against  the  owner  of  the  ship,  even  supposing  the 
latter  might,  under  the  circumstances,  be  made  ulti- 
mately lialjle  for  the  payment."^ 

270.  If  damage  be  done  by  a  peril  insured  against, 
or  within  the  exceptions  of  the  bill  of  lading,  but 
the  master  neglects  to  repair  that  damage,  and  in 
consequence  of  the  want  of  such  repairs  the  vessel 
is  lost,  or  the  goods  injured  or  destroyed,  the  neglect 
to  make  repairs,  and  not  the  sea  damage,  is  treated 


the  ship  and  freight.  And  when  there  arc  various  claims,  which 
have  occurred  at  different  times,  the  just  principle  would  seem  to 
be  found  in  the  maxim,  Qui  prior  est  in  tempore  ])otior  est  in  Jure. 
In  other  words,  the  earliest  creditor  has  a  priority  or  privilege  over 
the  others  for  his  prior  debt."  See  Joy  v.  Allen,  2  W.  &  N.  .'K).'}. 
I  The  .Ship  I'acket,  .'J  Mason's  R.  25.5,  201 ;  The  Gratitudine,  3 
Rob.  240,  201;  The  Iloffnung,  G  Rob.  383;  Emerigon  on  Jfurif. 
Loan.s,  c,  4,  s.  9;  c.  12,  a.  4. 


270  THE   LAW  OF   snipriNG. 

as  the  proximate  cause  of  the  loss.  The  insurers 
are  discharged,  but  the  carrier  is  liable  to  the  ship- 
pers, and  upon  the  ground  of  his  neglect  to  make 
the  requisite  repairs.^ 

*  The  General  Mutual  Ins.  Co.  v.  Sherwood,  Law  Rep.  for 
April  '63,  p.  G73.  In  this  case  it  was  held,  in  opposition  to  Hall 
V.  Washington  Ins.  Co.,  2  Story,  176,  that,  under  a  marine  policy 
insuring  against  the  usual  perils,  including  barratry,  the  under- 
writers are  not  liable  to  repay  to  the  insured,  damages  paid  by  him 
to  the  owners  of  another  vessel  and  cargo,  suffered  in  a  collision 
occasioned  by  the  negligence  of  the  master  or  mariners  of  the  ves- 
sel insured.  The  Supreme  Court  did  not  intend  to  overrule  by 
this  decision,  their  decision  in  the  previous  case  of  Peters  v.  War- 
ren Ins.  Co.,  14  Peters'  R.  99.  The  loss  in  that  case  was  the 
result  of  accident,  the  collision  not  being  occasioned  by  the  fault 
or  carelessness  of  either  side,  and,  therefore,  a  loss  by  the  perils 
of  the  sea,  within  the  protection  of  the  policy  of  insurance.  But 
in  this  case,  the  damage  to  the  other  vessel  was  the  result  of 
the  ncjJigence  of  the  master  and  mariners  of  the  insured  vessel. 
And  in  law,  this  being  the  proximate  cause  of  the  loss,  the  in- 
surers are  not  liable.  They  were  liable,  however,  for  the  damage 
to  the  insured  vessel,  but  not  to  the  other.  See  Pothier,  Traite 
d' Assurance,  No.  49,  50 ;  Boucher,  1500,  1502  j  De  Vaux  v. 
Salvador,  4  Ad.  &  El.,  420 ;  Marshall  on  Ins.,  495 ;  1  Phil,  on 
Ins.,  636 ;  2  Arnould  on  Ins.  775.  See  also  Robinson  v. 
Jones,  8  Mass.  536,  where  condemnation  of  a  neutral  vessel  was 
caused  by  resistance  of  search,  and  the  insurers  discharged  in  con- 
sequence.    Id.  308. 


271 


CHAPTER  XL 

OF  THE  DELIVERY  OF  THE  GOODS  AT  THE  PORT 
OF  DESTINATION. 

271.  Among  the  obligations  which  common  car- 
riers take  upon  themselves,  as  resulting  from  the 
nature  of  their  employment,  is  that  of  delivering  the 
goods,  when  they  are  transported  to  the  place  of 
destination,  to  the  proper  person.  If  they  are  de- 
livered to  a  wrong  person,  and  any  loss  or  damage 
ensues  in  consequence,  they  are  responsible  to  the 
owner,'  If,  however,  there  is  a  misdelivery  and  loss, 
from  the  neglect  or  fault  of  the  shipper,  without  any 
fault  or  neglect  of  the  carrier,  the  former  has  no 
claim  upon  the  latter.  Thus,  when  from  the  neglect 
of  the  shipper  to  properly  mark  his  goods,  and  pre- 
sent them  to  the  carrier  or  his  servants  for  entry  in 
their  Ijooks,  there  was  a  misdelivery  and  consequent 
loss,  the  shipper  was  held  to  have  no  claim  upon  the 
carrier.^ 

'  The  Huntress,  Davies'  R.  80 ;  Golden  v.  Miinuiiig,  '4  Wilson 
420  J  Garnctt  v.  Willan,  5  K-irnwcll  Sc  Alder.  52. 

"The  Huntress,  sujira.  "It  is  tiie  iippropriatc  duty  of  tlic 
mate,"  observed  Judge  Ware,  in  this  ease,  "  to  superintend  the 
loading  and  unloading  of  the  goods  taken  on  freight.  It  is  true, 
that  if  a  dispute  arises  between  different  persons  elaiining  the 
Bamc  goods,  the  proper  person  to  decide  this  dispute  is  the  clerk, 
because  he  takes  the  account  of  the  goods.    Rut  if  the  mate  volun- 


272  THE     LAW    OF    SHIPPING. 

272.  After  safely  mooring  or  anchoring  the  ship, 
the  master  must  report  her,  together  with  the  crew, 
and  deliver  his  manifest  and  other  papers,  and  do 
whatever  else  is  required  to  be  done  by  the  law  or 
custom  of  the  place.'  If  the  goods  are  consigned  to 
the  master  for  sale  and  returns,  he  delivers  them  as 
master,  and  receives  them  as  consignee.  He  must 
use  due  diligence  in  disposing  of  them,  and  is  ac- 
countable for  his  conduct  as  consignee  to  the  shipper. 
If  he  has  orders  to  dispose  of  them  at  the  port  of 
destination  for  the  most  he  can  obtain,  but  he  is  un- 
able to  find  a  purchaser,  he  is  justified  in  leaving 
them  in  the  hands  of  a  merchant  in  good  credit,  to 
be  sold  for  the  owner.^ 

273.  If  he  is  not  the  consignee,  and  the  goods  are 
not  intrusted  to  him  to  dispose  of,  he  is  bound  to 
deliver  them  without  delay  to  the  merchant  or  con- 
signee at  the  port  of  destination,  upon  production  of 

teers  to  decide  the  dispute,  and  delivers  them  to  a  wrong  person, 
the  most  that  can  be  said  is,  that  he  is  acting  beyond  the  line  of 
his  proper  duty,  and  may  be  answerable  to  his  employers;  but 
they  are  responsible  to  the  owner,  for  they  are  as  much  responsible 
for  the  acts  of  their  servants  as  for  their  own."  See  also  Conner 
V.  Levering,  2  Cranch.  C.  C  R.  163.  If  the  master  lands  the 
goods  at  a  wrong  place,  the  expense  of  reloading  must  be  borne  by 
the  ship-owner.     Weston  v.  Minot,  3  W.  &  M.  436. 

'  Abbott  on  Shipping,  457. 

^  The  Waldo,  Davics'  R.  IGl ;  Williams  v.  Nichols,  13  Wend. 
58  ;  Cooke  v.  Com.  Ins.  Co.,  11  John.  R.  40;  U.  Ins.  Co.  v.  Scott, 
1  Id.  Ill ;  Kemp  v.  Caughty,  11  Id.  107;  Day  v.  Noble,  2  Pick. 
615 ;  2  Livermore,  215.  Upon  the  delivery  of  the  goods,  the 
master's  authority  as  master  ceases,  and  consequently  the  liability 
of  the  ship-owners.  See  also  Kendrick  v.  Delafield,  2  Caines'  R. 
72. 


OF    THE    DELIVERY    OF     THE    GOODS.  273 

the  bills  of  lading  and  pa3-ment  of  the  freight,  and 
other  charges  due  in  respect  to  them/  By  the  well- 
settled  course  and  usage  of  trade,  delivery  of  goods 
on  freight  at  the  dock,  with  notice  to  the  consignee 

'  Abbott  on  Shipping,  459,  460 ;  Bishop  v.  Ware,  3  Camp.  R. 
360;  Syeds  v.  Hay,  4  T.  R.  260.  The  former  of  these  cases,  was 
an  action  on  the  case  for  not  delivering  goods  according  to  a  bill  of 
lading — with  a  count  in  trover.  The  plaintiff  shipped  at  Hull,  on 
board  a  vessel  belonging  to  the  defendant,  a  package  of  files,  to  be 
carried  to  London.  The  bill  of  lading  was  in  the  usual  form,  stating 
that  the  goods  were  to  be  delivered  on  payment  of  freight.  When 
the  vessel  had  arrived  and  was  moored  off  Custom-house  Quay,  the 
plaintiffs  sent  a  barge  for  their  goods,  which  they  required  to  be 
put  over  the  ship's  side  into  the  barge,  at  the  same  time  tendering 
the  freight.  The  captain  insisted  upon  his  right  to  wharfage  as 
well  as  freight,  and  refused  to  deliver  up  the  goods  till  the  wharfage 
was  paid. 

It  was  then  proved,  by  way  of  defence  to  the  action,  that  when 
goods  are  put  over  the  ship's  side,  after  she  is  moored  at  the  wharf, 
half  wharfage  is  usually  paid  by  the  consignee — which  was  con- 
tended to  be  a  reasonable  demand,  as  the  goods  derive  a  benefit 
from  the  ship  being  moored  at  the  whiirf,  although  they  are  not 
actually  landed  there. 

Sir  James  Mansfield. — *'  If  the  goods  are  not  landed,  a  compen- 
sation must  be  made  for  the  benefit  derived  from  the  wharf  by  the 
owner  of  the  ship.  The  goods  cannot  be  subjected  to  this  charge 
more  than  to  many  others  which  are  incurred  by  the  ship  in  the 
course  of  the  voyage.  According  to  the  bill  of  lading,  the  goods 
in  question  were  to  be  delivered  on  payment  of  freight.  The  de- 
fendant, therefore,  could  have  no  right  to  detain  them  for  wharfage." 
The  plaintiff,  accordingly,  had  a  verdict. 

In  the  latter  case  (Syeds  v.  Hay,  supra),  it  was  held,  that  if 
the  consignee  require  to  have  the  goods  delivered  to  himself, 
and  direct  the  master  not  to  land  them  at  a  wharf  at  London, 
the  master  must  obey  the  request;  for  the  wharfinger  has  no  legal 
right  to  insi.st  upon  the  goods  being  landed  at  his  wharf,  although 
the  ves.sel  be  moored  against  it.  Sec  Hand  v.  Uayncs,  4  Whart. 
204,  210. 

18 


274  THE    LAW    OF     SHIPPING. 

of  the  time  and  place,  discliarges  the  ship-owner  or 
common  carrier  from  liabihty,  and  the  rule  applies 
equally  to  the  coasting  and  the  foreign  trade.  But 
uniform  usage  will  control  and  regulate  the  mode  of 
delivery,  and  an  exception  to  the  general  rule  exists, 
if  a  reasonable  discretion  is  not  exercised  by  the  car- 
rier, and  perishable  goods  are  put  on  the  dock  in 
hazardous  or  improper  weather,  against  the  consent 
of  the  consignee/ 

274.  The  consignee  of  a  vessel  has  authority  to 
arrange  with  the  owner  or  consignee  of  her  cargo  in 
respect  to  the  time  and  manner  of  its  delivery,  and 
an  agreement  for  that  object  is  not  an  independent 
a^-reement  or  a  mere  personal  matter  between  the 
parties.  Hence,  in  a  recent  case,  where  B.,  the  con- 
signee of  a  vessel,  not  owning  any  part  of  her,  com- 
menced discharging  a  quantity  of  hemp  consigned  to 
H.,  and  before  its  discharge  was  completed,  agreed 
with  H.  to  stop  discharging,  because  the  weather 
was  bad,  but  violated  his  agreement,  and  discharged 
all  the  hemp  upon  the  wharf,  where  so  much  of  it 
as  had  not  been  removed  by  H.  was  damaged  by 
rain,  it  was  held,  on  a  libel  in  rem  against  the  vessel, 
filed  by  II.,  that  he  was  entitled  to  recover  the  loss 
occasioned  by  such  damage.^ 

•  The  Ship  Grafton,  Blatchford's  R.  173  ;  Kohn  v.  Packard,  3 
Louis.  11.  225 ;  Cope  v.  Cordova,  1  Rawle's  11.  203 ;  Ostrandcr 
V.  Brown,  15  John.  R.  39;  Hyde  v.  Navigation  Co.,  5  T.  R.  394; 
Chickering  v.  Fowler,  4  Pick.  R.  371 ;  1  Valin,  510;  Strong  v. 
Natally,  4  Bos.  &  Pull.  IG ;  Northern  v.  Williams,  6  Louis.  R. 
579. 

'  The  Ship  Grafton,  supra. 


OF    THE    DELIYERT    OF    THE    GOODS.  275 

275.  A  promise  by  the  master  of  a  vessel  to  deliver 
goods  to  a  consignee,  does  not  require  that  he  should 
deliver  them  to  the  consignee  personally,  or  at  any 
particular  wharf.  It  is  sufficient  if  he  leaves  them  at 
some  usual  place  of  unloading,  giving  notice  to  the 
consignee  that  they  are  so  left.  If,  after  such  notice, 
the  consignee  refuses  to  receive  the  goods,  it  is  the 
duty  of  the  master  to  take  care  of  them  for  the 
owner;  unless  the  consignee  is  under  an  obligation 
to  receive  them,  in  which  case  they  will  be  at  his 
risk.'  The  consignee  is  always  bound  to  receive 
the  goods  when  they  are  shipped  on  his  order.  He 
may  also  be  bound  to  receive  them  by  mercantile 
usage.  In  the  case  of  Wilson  v.  Broom,^  it  appeared 
that  a  merchant  in  New  Orleans  instructed  his  agent 
in  Thomaston  to  ship  him  lime  at  a  certain  limited 
price.  The  agent  accordingly  made  a  shipment  on 
the  25th  of  October,  and  gave  advice  of  it  by  letter, 
dated  31st  of  the  same  month.  The  vessel  did  not 
leave  until  the  3d  of  November.  When  she  arrived 
in  New  Orleans,  the  merchant  refused  to  take  the 
lime,  upon  the  ground  that  he  had  not  been  duly 
apprised  of  tlie  shipment.  The  cause  was  tried  in 
the  Second  District  Court  of  New  Orleans,  and  it 
was  held,  that  the  merchant,  under  the  circum- 
stances, not  l)eing  l)ound  to  receive  the  lime,  was 
exempt  from  any  liability  for  a  subsequent  loss 
occurring  to  it.  Ihit  upon  jipjx'al  to  llie  Supreme 
Court,  the  judgment  of  the  District  Court  was  re- 
versed, it  lu'ing  adjudged  tiiat  as  tlie  advice  of 
the    shij)ment  was   duly  given,  the  merchant  was 

»  6  Louis.  R.  381.     Sec  also  White  v.  Krarnoy,  2  Ann.  CSO. 
■  Chickoring  v.   Fowler,  4  Tick,  '.ill;  O.stninder  v.  IJrown,  15 
John.  R.  30. 


276  TUE    LAW    OF    SHIPPING. 

bound  lor  the  loss  which  occurred  in  a  sale  made  in 
consequence  of  his  refusal  to  accept  the  shipment. 
Tiie  doctrine  laid  down  by  the  Court  was,  that  when 
a  party  has  contracted  for  a  certain  article  at  a  fixed 
price,  and  improperly  refuses  to  accept  the  article 
when  offered  to  be  delivered  to  him,  he  is  liable  for 
the  loss  sustained  in  a  sale  of  the  article.  That  loss 
will  be  the  difference  between  the  price  agreed  upon 
and  the  amount  of  the  sale ;  and  the  amount  of  the 
loss  may  be  fairly  ascertained  by  a  private  sale  at 
the  market  price  of  the  article. 

276.  If  the  consignee  should  be  dead  or  absent,  or 
is  not  known,  and  cannot,  after  due  efforts  are  made, 
be  found,  the  master  must  not  abandon  the  goods 
without  protection.  He  will  discharge  himself,  how- 
ever, from  further  responsibility  by  placing  the  goods 
in  store  with  some  responsible  third  person  in  that 
business,  at  the  place  of  delivery,  for,  and  on  account 
of  the  owner.  And  by  so  doing  he  will  be  entitled 
to  his  freight,  together  with  all  extra  charges.' 
When  the  goods  are  so  delivered,  the  storekeeper 
becomes  the  bailee  and  agent  of  the  owner  in  respect 
to  such  goods.^    In  the  case  of  the  Schooner  Cassius, 

'  The  same  authorities  as  before.  See  also  Fisk  v.  Newton,  1 
Denio.  R.  45 ;  Gibson  v.  Culver,  17  Wend.  305,  as  to  the  delivery 
of  a  parcel  by  a  common  carrier. 

^  Fisk  V.  Newton,  supra.  In  this  case  the  wharf  was  the  place 
of  delivery,  and  II.  S.  the  person  to  whom,  from  the  directions  of 
the  plaintiff,  the  goods  were  to  be  delivered.  H.  S.  was  unknown 
to  the  carrier.  He  did  not  call  at  the  place  of  delivery  for  the 
goods.  The  consignee  had  omitted  to  inform  the  defendant  (the 
carrier)  of  the  particular  residence  of  H.  S.,  or  of  his  occupation 
or  place  of  business.     lie  was  a  mere  clerk,  having  no  place  of 


OF    THE    DELIVERY    OF    THE    GOODS.  277 

where  the  master  was,  by  his  agreement  with  the 
shippers,  to  deUver  the  cargo  at  Velasco,  but  upon 
arriving  there  the  consignee  refused  to  receive  it,  it 
was  held,  that,  as  the  cargo  was  not  of  a  perishable 
nature,  the  master  was  bound  to  land  it  at  Velasco, 
and  store  it  for  the  benefit  of  the  shippers,  and  could 
not  carry  it  to  another  port,  nor  sell  it ;  although  it 
could  not  be  sold  at  Velasco/  "  If  the  consignee  re- 
fused to  receive  the  cargo,"  said  Judge  Story,  "  after 
it  was  landed,  and  to  give  the  bill  on  New  York  for 
the  freight,  then  it  became  the  duty  of  the  master 
to  place  the  same  in  the  hands  of  some  trustworthy 
person  for  the  security  of  his  lien  for  the  freight, 

business,  his  name  not  in  the  city  directory,  and  was  not  discovered 
by  the  carrier,  although  reasonable  efforts  were  made  to  find  him. 
The  consignor  had  misinformed  II.  S.  as  to  the  line  by  which  the 
goods  had  been  sent,  and  the  person  to  whose  care  they  were 
directed  to  be  delivered  ;  by  reason  of  which  II.  S.  did  not  receive 
the  goods.  The  carrier  put  the  goods  in  store  with  a  responsible 
third  person,  for  and  on  account  of  the  owner,  according  to  the 
usage  of  the  trade  at  that  place  under  such  circumstances.  Then 
the  goods  were  lost  through  the  insolvency  of  the  storehouse-keeper, 
occurring  several  months  after  the  delivery.  It  was  accordingly 
held,  that  the  risk  of  the  carrier  ceased  on  the  delivery  of  the 
goods  in  store,  and  that  the  plaintiff  was  not  entitled  to  recover. 
Sec  also  TJatcliffe  v.  Bourn,  4  Bing.  New.  Cas.  314,  380,  331; 
Story  on  Bailments,  sec.  54.'3;  Kohn  v.  Packard,  3  Miller  (Louis.) 
R.  225;  Hand  v.  Baynes,  4  Whart.  R.  204,  210;  Hill  v.  Hum- 
phreys, 5  Watts  &  Serg.  123 ;  Kagle  v.  White,  0  Whart.  ^Of). 

*  The  .Schooner  f'assius,  2  Story's  11.  85.  See  also  Brown  v. 
Ralston,  U  Leigh  (Va.)  K.  532.  The  general  rule,  and  it  was 
recognised  in  this  latter  case,  is,  that  the  manner  of  delivery,  and 
the  period  at  which  the  master  ceases  to  be  responsible,  depend, 
in  the  absence  of  agreement,  on  the  custom  of  the  |)lace  where  the 
voyage  terminates.  Wardell  v.  .'Nbmrillyan,  2  Esp.  N.  P.  Cas. 
603;  Mayell  v.  Potter,  2  Johns.  Cas.  371. 


278  THE    LAW    OF    SIIIPriNG. 

and,  subject  thereto,  for  the  benefit  and  account  of 
the  owners.  But  no  right,  even  under  such  circum- 
stances, could  exist  on  the  part  of  the  master  to  sell 
the  cargo,  unless  it  was  perishable,  and  might  other- 
wise have  been  lost,  or  have  perished,  which  is  not 
proved  or  pretended  by  the  answer.  A  fortiori,  if 
the  master  had  no  right  to  sell  at  Velasco,  because 
there  was  no  necessity  therefor,  he  could  not  have  a 
right  to  carry  the  cargo  elsewhere  and  sell  it." 

277.  Carriers  by  land  are  bound  to  make  a  per- 
sonal delivery  of  the  goods  intrusted  to  their  care, 
unless  there  is  a  very  clear  and  uniform  usage  or  cus- 
tom to  leave  them  at  a  particular  place  of  deposit, 
where  the  carrier  is  accustomed  to  stop.  In  this 
latter  case,  the  carrier  is  bound  to  give  notice  of  the 
arrival  of  the  goods  to  the  person  to  whom  they  are 
directed,  if  such  person  is  known  to  him,  and  within 
a  reasonable  time.  If,  however,  it  is  the  established 
custom,  to  leave  them  at  the  place  of  deposit,  at  the 
risk  of  the  owner,  and  without  giving  him  any  no- 
tice, then  the  owner  is  bound  to  apply  for  and  secure 
them  there.^ 

278.  When  personal  delivery  is  required,  it  must 
be  made  at  a  reasonable  time,  and  in  a  reasonable 
place  and  manner.  If  the  goods  are  tendered  after 
the  hours  of  business,  or  when  the  consignee  is 
unable  to  receive  them,  such  tender  will  not  dis- 
charge the  carrier.  His  duty  in  such  a  case,  would 
be  to  take  the  goods  back,  and  keep  them  safely, 

'  Story  on  Bailments,  sec.  543  ;  Gibson  v.  Culver,  17  Wend. 
R.  305;  30G ;  Gatcliffe  v.  Bourn,  sitpra. 


OF    THE    DELIVERY    OF    THE    GOODS.  279 

and  under  all  his  responsibility  as  carrier.^  But 
with  respect  to  the  foreign  and  coasting  trade,  the 
rule,  as  we  have  seen,  is  different.  Personal  delivery 
is  not  required.  The  reason  is  obvious.  A  ship, 
trading  from  one  port  to  another,  has  not  the  means 
of  carrj'ing  goods  on  land ;  and,  therefore,  according 
to  the  established  course  of  trade,  a  delivery  on  the 
usual  wharf,  with  notice  to  the  consignee,  is  such  a 
delivery  as  will  discharge  the  carrier.^ 

279.  When  the  consignee  demands  that  the  goods 


•  Hill  V.  Humphreys,  5  Watts  &  S.  123 ;  M'Henry  v.  R.  R. 
Co.,  4  Harr.  R.  448.  He  must  store  the  goods,  if  necessary,  un- 
less there  is  a  contrary  usage.     Eagle  v.  White,  6  Whart.  505. 

"  Story  on  Bailments,  sec.  544;  GatclifFe  v.  Bourn.  4  Bing.  N. 
C.  314;  Strong  v.  Natally,  4  Bos.  &  Pull.  16;  Northern  v.  Wil- 
liams, G  Louis.  R.  579.  Mr.  Angell,  in  his  work  on  Carriers,  p. 
309,  expresses  the  opinion  that  the  difference  in  the  ingredients 
necessary  to  constitute  a  sufficient  delivery  by  the  inland  and 
foreign  ship  carrier,  arises  from  the  nature  of  their  respective  con- 
tracts :  the  latter,  undertaking,  by  the  bill  of  lading,  to  convey 
from  port  to  port,  is  discharged  by  a  delivery  pursuant  to  the  un- 
dertaking; the  former,  contracting  to  deliver  to  the  consignee  is 
bound  to  the  performance  of  an  actual  delivery  in  accordance  with 
his  contract;  though  if  he  had  only  engaged  to  convey  generally 
from  one  place  to  another,  a  delivery  at  the  latter  place  might  dis- 
charge him,  as  that  at  the  port  does  the  ship  carrier;  in  the  case, 
for  instance,  where  the  land  carrier's  warehou.se  is  the  place  of  de- 
livery. But  this  exposition  of  the  difTcrence  established  in  the 
two  cases  is  not  satisfactory.  And  for  the  obvious  reason,  that  the 
foreign  ship  carrier  undertakes  to  do  more  than  to  carry  from  port 
to  port.  He  stipulates  to  make  a  delivery  to  the  cnnsignec  when 
he  has  arrived  at  the  pnrt  of  destination.  He  is  hound  to  make 
BQch  delivery,  equally  with  tlic  inland  carrier.  But  the  law  deems 
that  a  delivery  in  the  one  case,  which  it  docs  not  so  deem  in  the 
other,  establishing  the  difference  in  tiio  mode  of  delivery,  on  ac- 
count of  the  difference  in  the  means  of  transportation. 


280  THE    LAW    OF    SHIPPING. 

should  be  delivered  to  him  on  board  the  ship,  the 
master,  it  seems,  must  comply  therewith.  And  if 
the  goods  are  put  on  board  of  a  lighter  in  the  cus- 
tomary way,  and  the  owner  then  takes  an  exclusive 
custody  of  them,  before  they  are  landed,  the  carrier 
is  discharged  from  any  subsequent  loss.^ 

280.  By  the  maritime  as  well  as  the  common  law, 
there  is  a  lien  on  the  goods  shipped  for  the  freight 
due  thereon,  whether  it  arise  under  a  common  bill 
of  lading,  or  under  a  charter-party.  But  this  lien 
may  be  waived  by  consent.  The  stipulations  in 
charter-parties  often  render  it  difficult  to  determine 
Avhether  they  are  or  are  not  inconsistent  with  the 
existence  of  the  lien.  For  instance,  if  the  delivery 
of  the  goods  is  by  the  charter-party  to  precede  the 
payment  or  security  of  payment  of  freight,  such  a 
stipulation  furnishes  a  clear  dispensation  with  the 
lien  for  freight ;  for  it  is  repugnant  to  it,  and  incom- 
patible with  it.  On  the  other  hand,  where  such 
payment,  or  security  of  payment  of  freight,  is  to  be 
simultaneous  or  concurrent  with  the  delivery,  then 
the  lien  exists  in  its  full  force,  and  may  be  insisted 
on.^ 


'  Syeds  v.  Hay,  4  Term  R.  260 ;  ante,  note  to  sec.  273  ;  Strong 
V.  Natally,  svpra.  See,  also,  Violett  v.  Stcttinius,  5  Cranch.  C. 
C.  II.  559,  as  to  the  receipt  of  property  by  the  consignee  before  it 
reaches  its  destination.  The  demand  and  receipt,  in  such  a  case, 
make  the  consignee  liable  for  full  freight. 

a  The  Volunteer,  1  Sum.  R.  551.  In  this  case,  the  charter- 
party  provided  for  the  payment  of  the  freight,  "  within  ten  days 
after  her  (the  schooner's)  return  to  Boston,  or,  in  case  of  loss,  to 
the  time  she  was  last  heard  of."  It  was  held,  that  this  stipula- 
tion did  not  require  a  delivery  of  the  cargo  within  the  ten  days,  or 


OF    THE    DELIVERY     OF    THE    GOODS.  281 

281.  Ordinarilj',  however,  the  shipper  cannot  in- 
sist on  a  delivery  of  the  goods  to  him,  until  the 
freight  or  lien  is  paid  or  secured  according  to  the 
terms  of  the  agreement.  At  the  same  time,  the 
carrier  is  not  at  liberty  to  insist  that  the  goods  shall 
not  be  landed  before  such  security  or  paj^ment  is 
made.  On  the  contrary,  the  shipper  has  a  right  to 
insist  upon  examining  the  goods,  after  they  are  de- 
livered, in  order  to  ascertain  whether  they  are 
damaged  or  not,  before  he  makes  himself  liable  at  all 
events  for  the  freight.^ 

282.  The  master  may  detain  any  part  of  the  mer- 

any  delivery  at  all,  without  payment  of  freight.  The  delay  of 
payment  for  ten  days,  allowed  by  the  charter-party,  did  not  waive 
the  lien,  or  entitle  the  shipper  to  receive  the  goods  without  pay- 
ment of  the  freight.  See,  also,  Yates  v.  Railston,  8  Taunt.  R. 
293 ;  Christie  v.  Lewis,  2  Brod.  &  Bing.  R.  410  j  Tate  v.  Meek, 
8  Taunt.  R.  280 ;  Saville  v.  Campion,  2  Barn.  &  Aid.  R.  503  ; 
Faith  V.  East  India  Co.,  4  Barn.  &  Aid.  R.  030 ;  Gracio  v.  Pahnor, 
8  Wheat.  R.  005;  Certain  Logs  of  Mahogany,  2  Sum.  R.  580. 
In  the  latter  case,  a  clause  in  the  charter-party  provided  for  the 
payment  of  freight,  "  in  five  days  after  her  (the  brig's)  return 
and  dischurfje  in  Boston."  It  was  held,  that  this  was  no  waiver 
or  displacement  of  the  lien  for  freight;  the  word  discharge  merely 
referring  to  the  unlading,  and  not  to  the  delivery  of  the  cargo. 
Hodgson  v.  Woodhouse,  1  Craiicli,  C.  C.  R.  549  ;  Ross  v.  Johnson, 
5  Burr.  2825 ;  Abbott  on  Shipp.  401  ;  Clcmson  v.  Davidson,  5 
Binn.  R.  392,  as  to  waiver  oflien  by  implication. 

In  Hodgson  v.  Woodhouse,  snpra^  which  was  trover  against  the 
master  of  a  vessel  for  cheese  and  porter,  it  was  held,  that  the  ac- 
tion would  not  lie,  unless  it  was  established  that  the  freight  was 
paid,  or  tendered,  or  the  pnyment  waived;  nor  would  it  lie,  if  tho 
goods  wore  lost  so  that  tlicy  did  not  come;  to  the  use  of  the  defendant. 

'  Certain  Logs  of  .Mahogany,  xnpm,  1  Valin,  p.  001  ;  IJaoIay 
Paty,  tome  ii.  391.  If  the  goods  are  damaged,  the  carrier  in 
liable  to  the  consignee.     4  M'Lcan'a  11.  325. 


282  THE    LAW    OF    SniPTING. 

cliaiidiso  lor  the  freight  of  all  that  is  consigned  to 
the  same  person.  Hence,  if  the  master  in  such  case 
makes  a  deliver^'  of  part  of  the  goods  to  the  con- 
signee, he  ma;y  retain  the  residue  even  against  a 
purchaser,  until  payment  of  the  freight  of  the  whole. 
But  if  the  goods  are  sold  to  different  persons  by  the 
consignee,  and  part  is  delivered,  the  master  has  not 
a  lien  upon  the  residue  so  as  to  compel  one  pur- 
chaser to  pay  freight  for  what  has  been  delivered  to 
another  purchaser ;  but  only  for  what  has  been  pur- 
chased by  himself/ 

283.  When  the  ship  is  detained  by  a  hostile  em- 
bargo, but  the  cargo  is  exempted,  this  is  considered 
as  discharging  the  lien  which  the  master  had  upon 
the  goods."^  In  general,  where  enemies'  goods  are 
captured  in  a  neutral  ship,  the  captors  take  cum 
onere,  and  if  the  conduct  of  the  neutral  has  been 
perfectly  fair  and  impartial,  it  is  the  practice  of 
prize  courts  to  allow  him  his  full  freight,  in  the  same 
manner  as  if  the  original  voyage  had  been  per- 
formed.^ 

284.  The  same  principles,  as  we  shall  see  here- 

'  Abbott  on  Shipp.  461,  and  note  2 ;  Soldergrcen  v.  Flight,  6 
East,  ry22. 

2  The  Theresa  Barrita,  4  Rob.  R.  230. 

=»  The  Hoop,  1  Rob.  100,  219  ;  The  Antonia  Johanna,  1  Wheat. 
R.  109;  2  Wheat.  R.  Appendix,  .50.  In  Gorling  v.  Higgins,  1 
Camp.  R.  451,  it  was  held  by  Lord  EUenborough,  that  if  the  mas- 
ter could  not  deliver  the  goods,  because  of  their  illegal  seizure  and 
detention  by  the  revenue  officers,  the  shipper  might  nevertheless 
maintain  an  action  against  the  carrier  for  the  non-delivery,  and 
that  the  latter  had  an  action  against  the  officers. 


OF  THE  DELIVERY  OF  THE  GOODS.    283 

after,  which  apply  to  the  carriage  of  goods,  equally 
apply  to  the  carriage  of  passengers,  and  as'  in  the 
one  case,  the  goods  may  be  detained  for  freight,  so 
in  the  other  the  baggage  of  a  passenger  may  be  de- 
tained for  the  passage-money.  But  the  master  has 
no  lien  on  the  passenger  himself,  or  the  clothes 
which  he  is  actually  wearing  when  he  is  about  to 
leave  the  vessel ;  but  the  lien  extends  to  any  other 
property  he  may  have  on  board.^ 

285.  "  On  the  arrival  of  the  vessel  at  her  homeward 
port,  and  when  compelled  by  accidents  or  injury  to 
put  back,  or  into  a  port  other  than  that  of  her  desti- 
nation, it  is  usual,"  says  Lord  Tcnterden,  "  for  the 
master  to  present  himself  before  a  notary,  and  cause 
a  protest  to  be  noted,  and  afterwards  drawn  up  or 
extended.  British  consuls  at  foreign  ports  are  em- 
powered by  statute  to  perform  notarial  acts ;  but  in- 
asmuch as  their  attestation  would  probably  not  be 
deemed  abroad  of  equal  authenticity  with  that  of  the 
regular  public  notary,  the  master  would  do  well  to 
address  himself  to  that  functionary.  lie  should  re- 
member, however,  that  our  courts  do  not  adopt  the 
rules  of  evidence  which  prevail  in  foreign  courts,  and 
altliough  copies  of  documents  attested  by  a  public 
notary  may  be  evidence  of  the  originals  abroad,  they 
will  not  be  received  as  such  in  England.  The  pro- 
test is  a  declaration  or  narrative,  by  the  master,  of 
the  storms  or  bad  weather  which  the  vessel  may 
have  encountered,  the  accidents  which  may  have 
occurred,  and  the  conduct  which,  in  cases  of  emer- 

'  Sec  post,  fit.  Freight;  The  Abcrfojlc,  ]Jl;itohf.  H.  oCO;  Tho 
Pacifif,  Ibid.  oGO;  The  Lavinia,  1  Peters'  Ad.  R.  120;  Griggs  v. 
Austin,  :)  Pick.  20;  Wolf  v.  Summers,  2  Camp.  A.  n-J't. 


284  THE  LAW  OF  siiirriNG. 

gency,  he  had  thought  proper  to  pursue.  With  what- 
ever formalities  drawn  up,  it  cannot  be  received  in 
our  courts  as  evidence  for  the  master  or  his  owners; 
but  it  may  be  evidence  against  him  and  them,  and 
he  should  take  care  to  supply  from  the  log-book,  his 
own  recollection,  and  that  of  the  mate,  or  trustr 
worthy  mariners,  true  and  faithful  instructions  for 
its  preparation.  Protests  are  often  of  great  utility 
in  matters  connected  with  the  adjustment  of  losses 
in  marine  insurance,  and  in  the  calculation  of  ave- 
rages ;  they  are  received  as  evidence  in  foreign  courts, 
and  with  us  credit  is  often  given  to  their  contents 
by  merchants  and  underwriters,  when  free  from  all 
circumstances  of  suspicion.  Protests  are  also  made 
by  the  master  against  the  charterers  of  the  ship  or 
the  consignees  of  goods  for  not  loading  or  unloading 
the  vessel  pursuant  to  contract,  or  within  reasonable 
or  stipulated  delays;  and  by  the  merchant  against  the 
master  for  misconduct,  drunkenness,  &c.,  for  not  pro- 
ceeding to  her  with  due  despatch,  for  not  signing 
bills  of  lading  in  the  customary  form,  and  other  irre- 
gularities."^ 

286.  We  have  quoted  these  observations,  to  show 
the  nature  and  objects  of  a  protest.  They  deserve 
attention,  as  they  define  the  duties  of  the  master 
under  the  circumstances  described,  and  the  force  and 
value  of  the  protest  which  he  makes.  It  remains  to 
say,  in  addition,  that  by  our  law,  the  master  on  his 
arrival  in  port,  in  case  of  a  disaster,  is  bound  to  give, 
in  writing,  a  verified  statement  of  the  circumstances 

»  Abbott  on  Shipping,  4G5,  466.  See  also  the  Betsey  Caines,  2 
Hagg.  Ad.  R.  28 ;  Senat  v.  Porter,  7  T.  R.  158  ;  10  B.  &  C. 
511;  2  Stark.  6;  6  M.  &  Sel.  34,  39. 


OF    THE    DELIVERY    OF    THE    GOODS.  285 

attending  the  voyage  and  the  loss.  The  French 
law  requires  the  master,  within  twenty-four  hours 
after  his  arrival  in  port,  to  make  his  report  (in  our 
law  termed  a  protest),  containing  the  place  and  time 
of  his  departure,  the  course  he  has  kept,  the  dangers 
he  has  run,  the  accidents  and  all  the  remarkable 
circumstances  of  the  voyage.  The  report  is  to  be 
made  to  the  Tribunal  of  Commerce,  and  if  in  a  foreign 
port,  before  the  French  consul,  or,  in  the  absence  of 
either,  before  a  magistrate ;  and  the  report  is  to  be 
verified  by  the  master,  and  under  circumstances, 
together  with  the  crew.^ 

287.  AVhen  there  are  conflicting  claims  to  the 
property,  the  master  must  act  with  caution  in  making 
the  delivery.  He  must  inquire  into  the  circumstances 
of  the  consignee's  title,  and  to  whomsoever  he  de- 
livers the  goods,  he  must  take  care  to  obtain  adequate 
indemnity  for  the  risk  he  incurs  in  so  doing.  Vie 
have  elsewhere  observed,  that  prudence  would  dic- 
tate delivery  to  the  party  upon  whose  indemnity  he 
can  most  safely  rely.^ 

'  Code  de  Commerce,  art.  242-248  ;  3  Kent.  213,  note,  contain- 
ing an  abstract  of  the  requirements  of  the  Code,  as  stated  in  the 
text. 

*  Post,  tit.  Conveyance  of  Goods  in  a  General  Ship.  See  also 
Wilson  V.  Churchman,  4  Louis.  11.  452.  The  facts  in  this  case 
were  as  follows  :  On  the  5th  of  January,  1848,  the  plaintiffs  made 
a  cash  sale  to  Churchman  of  a  quantity  of  flour,  which  was  de- 
livered. Churchman  shipped  it  on  board  a  ves.sel  commanded 
by  Gilchrist,  bimnd  to  rhiladcli)hia.  Churchman  received,  as 
shipper,  a  bill  of  lading  in  (he  usual  form,  for  the  delivery  of  the 
cargo  in  I'hila<lclphia,  to  Fleming,  or  his  assigns.  After  this  bill 
of  lading  was  despatched  by  mail  to  Philadelphia  to  the  consignee, 
the  plaintiffs  commenced  a  suit  against  Churchman,  and  seized  tho 
flour  on  shipboard  at  New  Orleans,  under  a  writ  of  sequestration, 


2SG  THE     LAA7    OF    SIIirPING. 

288.  "  But  he  ought  not,"  says  Chancellor  Kent, 
"to  be  put  to  the  peril  and  necessity  of  indem- 

and  a  claim  of  the  vendor's  privilege.  The  sequestration  was 
levied  on  the  10th  of  January,  and  on  the  11th,  Gilchrist,  as  agent 
of  the  ship-owners,  gave  bond  for  the  property,  and  was  reinstated 
in  its  possession.  On  the  27th  of  January,  Cjik-hrist  filed  a  peti- 
tion, ])y  way  of  third  opposition,  in  which  he  alleged  himself  to  be 
master  and  part  owner  of  the  vessel.  He  stated  that  the  bill  of 
lading  had  been  given  before  the  sequestration,  and  had  been  for- 
warded to  the  consignee ;  that  the  plaintiffs  had  made  no  offer  to 
return  the  bill  of  lading;  that  he  was  bound  to  deliver  the  flour  at 
Philudolphia  to  the  consignee,  or  whoever  might  be  the  holder  of 
the  bill,  and  was  entitled  to  the  possession  and  custody  of  the  pro- 
perty in  preference  to  the  plaintiffs.  At  the  trial,  the  execution 
of  the  bill  of  lading,  and  the  fact  of  its  being  mailed  to  Fleming's 
address  before  the  levy  of  the  sequestration,  were  proved.  The 
plaintiflfs  proved  the  sale  of  the  flour,  Churchman's  failure  to  pay, 
and  that  he  was  in  failing  circumstances.  On  appeal  from  the 
judgment  of  the  District  Court,  and  a  hearing  before  the  Supreme 
Court,  the  opinion  of  this  tribunal  was  delivered  by  Slidell,  J. 
''  It  is  certain  that  the  plaintiff's  goods  are  gone,  without  their 
having  received  any  equivalent  for  them.  It  is  also  certain,  that, 
if  the  Philadelphia  consignee  was  neither  a  bond  fide  purchaser 
nor  advancer,  but  was  the  mere  agent  of  the  consignor,  who  has 
attempted  to  defraud  his  vendor,  the  consignee  would  have  no 
greater  right  to  defeat  the  vendor's  privilege  than  the  vendee  him- 
self would  have  had.  The  vendor  took  the  risk  of  the  consignee's 
being  neither  a  hond  fide  purchaser  nor  advancer,  and  caused  the 
goods  to  be  sequestered.  The  allegations  of  the  petition  gave  the 
captain  full  notice  that  the  plaintiffs  had  been  defrauded;  and  the 
judicial  process  would  have  excused  the  captain  to  the  consignee 
for  not  delivering  the  goods,  provided  he  gave  the  consignee  prompt 
notice  of  the  sequestration,  and  took,  in  the  meanwhile,  such  con- 
servative steps  in  the  cause  as  would  arrest  the  action  of  the  Court 
until  the  con.signee  could  come  in  and  assert  his  rights.  Unques- 
tionably the  Court  would  have  given  time  for  that  purpose,  upon 
a  proper  application,  and  would  also  have  indemnified  the  captain, 
at  the  plaintiffs'  expense,  for  his  trouble  and  loss  in  unloading  the 
good.s,  &c.     But  the  captain  undertakes  to  bond  the  goods,  and  to 


OF    THE    DELIVERY    OF    THE     GOODS.  287 

nity,  and  it  is  desirable  that  he  should  know  to 
whom  of  right  he  can  deliver  the  goods.  If  the  con- 
signee has  failed,  he  ought  to  deliver  to  the  claimant 
on  behalf  of  the  consignee ;  and  if  the  consignee  has 
assigned  the  bill  of  lading,  and  the  rights  of  the  con- 
signor be  still  interposed  and  contested,  it  is  safest 
for  the  master  to  deposit  the  goods  with  some  bailee, 
until  the  rights  of  the  claimants  are  settled,  as  they 
can  always  be,  upon  a  bill  of  interpleader  in  chan- 
cery, to  be  filed  by  the  master.  Having  made  a 
consignment,  the  consignor  or  seller  has  not  an  un- 
limited power  to  vary  it  at  pleasure.  He  mny  do  it 
only  for  the  purpose  of  protecting  himself  against  the 
insolvency  of  the  buyer  or  consignee."^ 

carry  them  to  Phikdelpliia.  'We  are  not  prepared  to  say  that  he 
had  not  a  right  to  take  this  course.  It  is  unnecessary  to  determine 
that  point.  But  if  he  had,  the  question  is,  what  he  should  have 
done  when  he  arrived  there  ?  With  full  notice  that  the  plaintiff 
had  been  defrauded,  it  was  his  duty  to  inquire  into  the  circum- 
stances of  the  consignee's  title  and  rights.  If  he  had  doubts  as  to 
those  rights,  he  might  probably  have  been  permitted  to  protect 
himself  by  a  bill  of  interpleader,  calling  upon  the  plaintiflfs,  the 
consignor  and  consignee,  to  litigate  inter  se.  Or,  he  could  have 
refused  to  deliver  the  goods,  if  satisfied,  upon  inquiry,  that  the 
consignee  was  a  mere  agent,  and  not  a  consignee  for  value.  But 
the  captain  has  not  thought  proper  to  show  that  he  took  any  pre- 
caution whatever;  or  even  that  he  ever  delivered  the  goods  at  all. 
Nbn  constat,  that  they  are  not  still  in  his  pos.session.  At  any 
rate,  if  he  delivered  the  goods  to  the  consignee,  he  has  not  shown 
that  the  consignee  was  entitled  to  them.  Under  these  circum- 
stances, we  think  that  the  case  is  with  the  plaintiffs;  and  that 
the  captain  had  no  right  to  rely  upon  the  naked  fact  that  he  had 
signed  and  issued  a  bill  of  lading."  It  was  also  held,  that  a  bill  of 
lading,  like  a  bill  of  exchange,  only  imports  that  the  holder  is 
prima  facie  a  holder  for  value. 
' :;  Kent,  215. 


288 


CHAPTER   XII. 
OF  THE  SHIP-OWNER'S  RESPONSIBILITY. 

289.  There  is  no  difference,  in  point  of  law,  be- 
tween common  carriers  by  water,  and  common  car- 
riers by  land.  Each  incurs  the  same  obligations  and 
liabilities,  and  is  subject  to  the  same  duties.'    Under- 

•  King  V.  Shepherd,  3  Story's  R.  349  ;  1  Phillips  on  Ins.  485, 
486 ;  Elliott  v.  Russell,  10  John.  1 ;  Plantamour  v.  Staples,  1 
Marsh,  on  Ins.,  169  ;  S.  C,  1  Term  R.  611.  I  am  aware  that 
Gibson,  C.  J.,  in  the  case  of  Hart  v.  Alien,  2  Watts.  R.  114, 
suggested  certain  differences  in  contracts  for  carriage  by  land, 
and  those  for  carriage  by  water.  But  I  do  not  understand  him 
to  intimate  any  difference  in  the  rights  and  obligations  incurred 
by  the  respective  carriers.  "  But  it  has  been  supposed,"  he  ob- 
serves, "  that  there  is  a  diflFerence,  depending  on  the  peculiar 
nature  of  affreightment,  between  the  liability  of  a  carrier  by  water 
and  that  of  a  carrier  by  land ;  and  that  being  an  insurer,  there 
is  of  necessity  in  the  contract  of  the  former,  as  in  every  contract 
of  marine  insurance,  an  implied  warranty  or  condition  of  seaworthi- 
ness. If  that  be  the  foundation  of  the  doctrine,  it  falls  to  the 
ground  in  every  case  like  the  present;  for  it  is  not  to  be  admit- 
ted that  the  law  of  maritime  contracts  can  be  applied  to  fresh- 
water transactions ;  or  that  calling  the  receipt  of  a  carrier  on  the 
Ohio  a  bill  of  lading,  or  the  misapplication  of  other  terms  appro- 
priate only  to  maritime  commerce,  can  change  the  essential  charac- 
ter of  the  things  designated  by  them.  Steamboats  on  the  Ohio, 
and  ships  in  the  foreign  or  coasting  trade,  arc  subject  to  diflFerent 
laws,  both  municipal  and  international,  as  regards  registry,  owner- 
ship, documents,  hypothecation,  insurance,  freight,  wages,  autho- 


OF   THE   ship-owner's    RESPONSIBILITY.       289 

taking,  as  he  does,  to  carry  goods  for  all  persons,  lie 
is  considered  as  engaged  in  a  public  employment,  and 
as  engaging  beforehand  to  carry  goods  for  a  reason- 
able remuneration  for  an}^  person  who  may  apply  to 
him  and  pay  the  hire,  and  he  will  be  liable  to  an 
action  for  refusing,  unless  he  has  a  reasonable  cause 
for  his  refusal.  The  law,  for  strong  reasons  of  public 
polic}^,  holds  him  to  a  very  rigorous  responsibility. 
He  is  answerable  not  only  for  his  own  acts,  but  for 
those  of  his  agents  and  servants.^ 


rity  of  the  master,  and  a  variety  of  other  matters;  as  well  as  the 
rights  and  remedies  to  which  they  give  rise,  and  the  Courts  which 
have  recognisance  of  them.  How  far  principles  of  maritime  law 
may  be  applicable  to  the  navigation  of  the  great  American  lakes, 
which  are,  in  fact,  inland  seas,  and  have  been  the  field  of  naval 
achievement  and  glory,  it  is  unnecessary  to  say ;  but  the  hiring  of 
a  boat  for  purposes  of  transportation  on  one  of  our  freshwater 
rivers,  I  take  to  be  attended  with  no  peculiar  incident  of  a  charter- 
part}'  of  aflfreightment,  the  contract  being  regulated  exclusively  by 
the  common  law.  But  these  incidents  are  immaterial  as  to  their 
supposed  effect  on  the  present  question,  hrcause  the  same  rule  in 
respect  to  the  vehicle  is  undouhtccUi/  ajiplicalle  to  every  sort  of  car- 
riage, the  owner  of  a  ship  being  liable  as  a  common  carrier,  on 
strict  common  laro  principles,  for  damage  occasioned  by  any  defect 
of  seaxrorthiness,  just  as  a  carrier  by  land  is  liable  for  damage 
occasioned  by  any  defect  in  his  wagon.  The  assertion  that  the 
carrier  is  bound  to  provide  a  sufficient  vessel,  or  bear  the  conse- 
quences of  the  default,  is  nothing  more  than  an  application  of  the 
general  principle  of  his  responsibility  to  a  specific  case;  and  not 
the  designation  of  a  superadded  duty,  as  might  be  supposed  from 
the  particularity  with  which  it  is  repeated  by  elementary  writers 
on  the  subject  of  the  freight;  and  hence  perhaps  the  origin  of 
the  impression  that  there  is  one  rule  for  the  water,  and  another 
for  the  land." 

*  The   lIuutrcHH,  J)avicH'  11.  82,  8G;  Story  on  Hailmcnts,  sec. 
502. 

19 


290  THE    LAW    OF    SIIIPriNG. 

290.  Before  proceeding  to  define  the  limits  of  his 
responsibility,  and  the  causes  that  will  discharge  him 
from  liability  in  cases  of  loss  or  injury  to  the  goods, 
we  may  observe,  that  a  contract  for  the  transportar 
tion  of  goods  on  the  sea,  is  clearly  within  the  juris- 
diction of  a  Court  of  Admiralty.  It  is  a  maritime 
contract.  And  "  all  causes  of  Admiralty  and  mari- 
time jurisdiction,"  are  made  by  the  Constitution, 
cognizable  by  the  Federal  Courts.  "  If  the  word 
maritime"  observes  Judge  "Ware,  in  his  learned  note, 
appended  to  the  case  of  The  Huntress,'  "  has  any 
meaning  (as  used  by  the  Constitution),  and  was  not 
used  merely  for  the  purpose  of  rounding  the  phrase, 
it  must  include  such  a  contract ;  and  we  are  not  gra- 
tuitously to  suppose  that  words  in  the  Constitution 
were  used  without  meaning.  Besides,  the  service  of 
the  seamen  is  not  denied  by  any  to  be  a  maritime 
service,  and  as  such  a  proper  subject  of  maritime 
jurisdiction.  This  service  consists  in  the  transpor- 
tation of  the  goods.     The  ship-owner,  as  a  carrier, 

'  The  Huntress,  supra ;  The  New  Jersey  Steam  Navigation  Co. 
V.  the  Merchants'  Bank,  6  How.  344.  The  opinion  delivered  in 
this  case  by  Mr.  Justice  Nelson,  was  concurred  in,  it  is  understood, 
by  Mr.  Chief  Justice  Taney,  Mr.  Justice  M'Lean,  and  Mr.  Justice 
Wayne, — Judges  Catron,  Daniel,  and  Woodbury  dissenticnte.  The 
decision  of  the  Court  affirmed  a  decree  of  the  Circuit  Court  of 
Ehode  Island,  which  was  a  judgment  upon  a  libel  in  personam 
against  a  steamboat  company  for  the  loss  of  specie  carried  in  their 
boat  by  one  of  the  persons  called  "  express  carriers,"  and  lost  by 
fire  in  Long  Island  Sound.  Whilst  the  judgment  of  the  Court 
in  this  particular  case,  is  very  ably,  and  perhaps  satisfactorily  sus- 
tained by  the  opinion  of  Mr.  Justice  Nelson,  it  must  be  confessed 
that  the  Court,  in  its  more  recent  decisions,  has  extended  the  juris- 
diction of  the  Admiralty  to  a  very  questionable  extent.  We  mean 
particularly,  as  that  jurisdiction  relates  to  locality. 


OF    THE     ship-owner's    RESPONSIBILITY.     291 

performs  it  by  his  servants,  the  master  and  ship's 
company.  To  admit  the  jurisdiction  in  one  case, 
and  deny  it  in  the  other,  is  to  affirm  of  the  same 
ser^dce,  that  it  is  and  that  it  is  not  maritime,  or  else 
to  affirm  that  the  term  maritime,  as  used  in  the  Con- 
stitution, is  an  unmeaning  expletive, — a  supposition 
so  preposterous,  not  to  say  indecent,  to  the  memory 
of  the  illustrious  statesmen  who  framed  that  instru- 
ment, that  it  is  not  to  be  for  a  moment  enter- 
tained." 

291.  If  the  goods  are  lost  or  damaged  whilst  in 
the  custody  and  control  of  the  master,  the  onus  'pro- 
handi  is  upon  him,  to  prove  that  the  loss  was  occa- 
sioned by  some  cause  for  which  the  law  will  excuse 
him.  Prima  faciei  the  obligation  of  safety  is  upon 
him.*  The  ship  is,  by  operation  of  law,  hypothe- 
cated to  the  shippers  for  any  loss  she  may  sustain 
from  the  insufficiency  of  the  vessel,  or  the  fault  of 

*  Story's  Bailments,  sec.  529  ;  Elliott  v.  Russell,  10  John.  K. 
1 ;  Morse  v.  Slue ;  T.  llaym.  220 ;  1  Vent.  238,  290 ;  Molloy,  B. 
2,  c.  2,  8.  2.  The  master  is  answerable,  says  Molloy,  su^yra,  "i 
the  goods  be  lost  or  purloinetl,  or  sustain  any  damage,  hurt,  or 
loss,  whether  in  the  haven  or  just  before,  or  upon  the  seas  after 
she  is  on  her  voyage."  If  there  be  any  exception  as  ti)  this  re- 
sponsibility at  sea,  it  proceeds  from  the  special  provision  in  the 
charter-party,  or  bill  of  lading,  and  not  from  any  suspension  of  the 
rule.  Such  exception  is  strong  evidence  of  the  acknowledged  law 
which  rendered  them  necessary.  In  short,  it  must  be  regarded 
aa  a  settled  point  in  the  English  law,  lliat  masters  and  owners 
of  vessels  arc  liable  in  port,  and  at  sea,  and  abroad,  to  the  whole 
extent  of  inland  carriers,  except  so  far  as  they  are  exempted  by  the 
exceptions  in  the  contract  of  charter-party,  or  bill  of  lading,  or  by 
statute.  JOlliott  v.  llussell,  Riqira  ;  IM'Clure  v.  Hammond,  i  Bay's 
R.  99 ;  Bell  V.  Reed,  4  Binn.  R.  127. 


292  THE   LA-\v  OF   snirriNG. 

the  master  or  crew.  In  the  common  form  of  char- 
ter-parties, a  clause  is  usually  inserted  by  which  the 
ship  and  freight  are  specifically  bound  for  the  per- 
formance of  the  covenants  therein  contained.  But 
when  such  clause  is  omitted,  it  is  tacitly  annexed  by 
the  law  to  every  contract  entered  into  by  the  mas- 
ter for  the  transportation  of  goods,  whether  by  bill 
of  lading  or  charter-party.^ 

292.  So  too,  if  the  usual  clause  in  charter-parties 
and  bills  of  lading,  specially  exempting  the  master 
and  owners  from  losses  occasioned  by  the  dangers  of 
the  seas,  be  omitted,  it  does  not  affect  the  question 
of  liability.  Because,  this  exception  of  the  dangers 
of  the  seas,  the  law  itself  silently  supplies  without 


»  The  Brig  Casco,  Davies'  R.  184.  This  was  a  libel  on  a  char- 
ter-party. The  master  of  the  Brig  Casco,  chartered  her  to  the 
libellant  for  a  voyage  to  Porto  Rico,  to  carry  a  cargo  of  lumber, 
and  from  thence  to  her  port  of  discharge  in  the  United  States, 
touching  at  Turks  Island  for  a  cargo  of  salt,  if  required  by  the 
charterer.  ,The  voyage  was  performed  to  Porto  Rico,  and  the 
cargo  delivered.  From  that  place  she  went  to  Turks  Island,  and 
took  a  cargo  of  salt.  On  her  return  from  Turks  Island,  she  was 
found  to  leak  so  badly  that  a  large  part  of  the  salt  was  lost.  Of 
5676  bushels  laden,  only  3132  bushels  were  delivered  at  Port- 
land, the  deficiency  amounting  to  2544  bushels.  This  libel  was 
brought  by  the  charterer  against  the  vessel,  to  recover  damages 
for  the  loss.  The  charter-party,  in  its  form,  was  somewhat  special 
and  peculiar.  There  was  no  clause  by  which  the  ship  and  freight 
were  specifically  bound  for  the  performance  of  the  covenant  in 
the  charter-party.  It  was  held,  as  stated  in  the  text,  that  they 
were  bound  in  the  absence  of  such  clause.  There  was  no  clause 
exempting  the  master  and  owners  from  losses  occasioned  by  the 
dangers  of  the  seas.  It  was  licld  that  they  were  exempt  without 
such  clause.  Other  points  involved  in  this  case,  will  be  considered 
in  a  subsequent  note.  ^ 


OF   THE   SHIP-OWNER   S    RESPONSIBILITY.      293 

its  being  formally  expressed.  It  is  a  general  rule  of 
law,  founded  upon  the  plainest  and  most  obvious 
principles  of  natural  justice,  that  no  man  shall  be 
held  responsible  for  fortuitous  events  and  accidents 
of  major  force,  such  as  human  sagacity  cannot  fore- 
see, nor  human  prudence  provide  against,  unless  he 
expressly  agrees  to  take  these  risks  upon  himself. 
Casus  fortuitos  nemo  prcestat.^ 

293.  There  is  an  exception  to  the  foregoing  rule, 
but  which  is  entirely  consistent  with  the  principle 
of  the  rule  itself  It  is,  when  the  party  to  be 
charged  has  been  guilty  of  some  fault,  without  which 
the  loss  could  not  have  happened.  The  liabilities  of 
the  owners  in  that  case  are  precisely  the  same,  and 
no  more  extensive  than  they  would  have  been  if  the 
usual  exception  of  the  dangers  of  the  seas  had  been 
inserted  in  the  charter-party.^  The  law  never  re- 
quires impossibilities.  Imjwssihllium  nulla  ohligatlo 
est.  But  when  a  party  is  chargeable  with  a  neglect 
or  fault,  without  which  the  loss  would  not  have  hap- 
pened, he  will  then  be  held  responsible  for  a  loss  by 
inevitaljle  accident,  or  an  accident  of  major  force. 
It  is  not  that  the  casualty  is  imputed  to  him,  but 
his  f)wn  neglect  or  fault,  which  is  the  occasion  of  the 
accident  proving  fatal.^ 

'The  IJrig  Casco,  «?//;m  ;  Potliicr,  Dcs  Obligations,  No.  142, 
Dig.  r)0,  17,  23;  Story's  Iiailin<'nt.s,  s.  25;  The  Paragon,  Ware's 
R.  n2t;  William.s  v.  (Irant,  1  Conn.  5X7. 

^  Tlic  IJrig  Casco,  svprn. 

'  As  an  illustration  of  the  principle  stated  in  the  text,  the 
reader  will  excuse  a  recital,  ponicwliat  at  length,  of  the  opinion  of 
Judge  Ware,  in  the  case  of  the  Brig  Casco,  supra.  "  If  the  in- 
jury to  the  vessel,"  he  asks,  "  was  so  inconsiderable,  the  cjuestioa 


294  TUE    LAW    OF    SHIPPING. 

294.  The  phrase  "  danger  of  the  seas,"  in  the  sense 
known  to  the  hiw,  must  be  understood  to  incUide 


presents  itself,  How  happened  it  that  so  large  a  part  of  the  cargo 
was  lost  ?     All  the  witnesses  who  examined  the  vessel  before  the 
carffo  was  discharged,  agree  in  ascribing  the  'loss  to  two  causes  : 
first,  the  limber  holes  (which  are  small  holes  made  in  the  under 
part  of  the  floor  timbers  next  the  kelson,  making  a  passage  for  the 
water  to  flow  from  the  forward  part  of  the  vessel  back  into  the 
well),  it  appears,  were  chocked  up,  so  as  to  prevent  the  flow  of  the 
water.       A  considerable  quantity  of  water,   which  should   have 
found  a  passage  back  into  the  well,  was  thus  constantly  kept  for- 
ward between  the  ceiling  or  skin  of  the  vessel  and  the  outside 
planks.     The  second,  was  the  want  of  sufficient  dunnage  at  the 
bilge,  between  the  first  and  second  thick  streaks  in  the  forward  part 
of  the  vessel.     All  the  witnesses  agree  that  there  was  sufficient 
dunnace  on  the  floor,  and  also  on  the  sides  of  the  vessel  in  the 
after  part.     But  at  the  bilge,  between  the  two  thick  streaks,  from 
the  mainmast  forward,  there  was  on  the  starboard  side  about  eighty 
square  feet,  and  on  the  larboard  side  about  forty  square  feet,  un- 
covered with  dunnage.     On  examining  the  ceiling  here,  the  seams 
•were  found  to  be  open.     On  the  starboard  side,  one  seam  was  open 
for  five  or  six  feet  to  the  width  of  five-eighths  of  an  inch,  and  on 
the  larboard  side  there  was  a  seam  open  as  wide  for  fifteen  or  six- 
teen feet ;  and  generally  the   ceiling  was  not  sufficiently  tight  to 
prevent  the  water  from  being  forced  through  by  the  motion  of  the 
vessel.     The  vessel  having  a  flat  floor,  when  she  was  sailing  with 
the  wind  on  her  beam  and  thrown  down  on  the  opposite  side,  the 
water,  which  was  prevented  from  passing  through  the  limbers  into 
the  well,  was  washed  down  to  her  bilge,  and  by  the  motion  of  the 
ship  blown  up  through  the  open  seams  of  her  ceiling  directly  upon 
the  salt.     Nearly  all  the  witnesses  agree  that  it  was  in  this  way 
that  the  salt  was  lost.     And  in  point  of  fact,  the  whole  extraordi- 
nary wastage  was  in  the  forward  part  of  the  vessel ;  the  loss  in  the 
after  part  was  not  more  than  what  is  usual.     The  evidence  also  is, 
that  the  salt  melted  most  in   the  larboard  wing,  though  that  was 
better  supplied  with   dunnage   than  the   other  side.     But  then  it 
appears  from  the  log,  that  the  vessel,  during  the  greater  part  of  the 
passage,  was  sailing  on  her  larboard  tack,  and  this  would  naturally 


OF    THE    SHIP-O'U'XER'S    RESPONSIBILITY.     295 

only  such  losses  as  are  of  an  extraordinary  nature, 
or  arise  from  some  irresistible  force,  or  some  over- 
whelming power,  which  cannot  be  guarded  against 
by  the  ordinary  exertions  of  human  skill  and  pru- 
dence.^ ""  Perils  of  the  sea,"  says  Chancellor  Kent, 
"  denote  natural  accidents  peculiar  to  that  element, 
which  do  not  happen  by  the  intervention  of  man, 
nor  are  to  be  prevented  by  human  prudence.  A 
casus  fortuitus,  was  defined  in  the  civil  law  to  be 
quod  damno  fatali  contingit,  cidvis  dUigentissimo  ijos- 

occasion  the  most  waste,  if  it  was  produced  by  the  blowing  of  the 
■water  through  the  seams  of  the  ceiling.  On  a  view  of  the  whole 
evidence,  it  may,  I  think,  safely  be  taken  as  an  established  fact, 
that  the  loss  of  the  salt  arose  from  the  two  causes  that  have  been 
mentioned. 

"  The  whole  case,  then,  seems  to  be  reduced  to  this,  whether  the 
neglect  of  the  owners  to  provide  means  for  clearing  the  limber- 
holes,  and  the  neglect  of  the  master  to  place  sufficient  dunnage  on 
the  wings  of  the  forward  part  of  the  vessel  to  protect  the  salt  from 
the  water,  are  faults  of  such  character  as  to  render  the  parties 
legally  responsible  for  a  loss  occasioned  by  these  very  deficiencies. 
If  no  fault  can  be  imputed  to  the  master  or  owners  on  this  ground, 
the  loss  must  be  ascribed  solely  to  the  dangers  of  the  seas,  and  be 

borne  by  the  shipper 

My  opinion  on  the  whole  is,  that  the  neglect  upon  the  part  of  the 
owners  to  provide  means  by  which  the  limbers  might  be  kept  open 
BO  as  to  leave  a  free  passage  for  the  water  from  the  forward  part  of 
the  vessel  to  the  well,  and  the  omission  on  the  part  of  the  master 
to  provide  proper  dunnage  for  the  wings  of  the  forward  part  of  the 
vessel,  arc  such  neglects  as  render  them  legally  responsible  for  a 
loss  that  may  be  ascribed  directly  to  those  deficiencies."  Sec  also, 
Williams  v.  Tirant,  1  Conn.  487,  as  to  the  effect  of  previous  negli- 
gence or  misconduct,  liy  which  the  loss  may  have  been  occasioned, 
although  arising  from  an  inevitable  necessity  existing  at  the  time 
of  the  loss. 

*  The  Schooner  Reeside,  2  Sum.  II.  5G7 ;  Forward  v.  Tittard, 
1  T.  II.  33. 


29G  TUE    LAW    OF    SHIPPING. 

sit  coniiur/erc.  It  is  a  loss  happening  in  spite  of  all 
human  elVort  and  sagacity.  The  only  exception  to 
this  definition  is,  the  case  of  a  vessel  captured  and 
plundered  by  pirates,  and  that  has  been  adjudged  to 
be  a  peril  of  the  sea."^ 

295.  Before  proceeding  to  mention  particular  perils, 
which  excuse  the  carrier  from  liability  arising  there- 
from, it  is  proper  to  observe,  that  although  the  loss 
occurs  by  a  peril  of  the  sea,  yet  if  it  might  have 
been  avoided  by  the  exercise  of  any  reasonable  skill 
or  diligence  at  the  time  when  it  occurs,  it  is  not 
deemed  to  be,  in  the  sense  of  the  phrase,  "  perils  of 
the  sea,"  such  a  loss  as  will  exempt  the  carrier  from 
liability,  but  rather  a  loss  by  the  gross  negligence  of 
the  party  .2 

1  3  Kent,  216;  Pickering  v.  Barldcy,  Styles,  132;  Barton  v. 
Wolliford,  Comb.  56 ;  Williams  v.  Grant,  1  Conn.  487  ;  Potter  v. 
Suffolk  Ins.  Co.,  2  Sum.  11.  197 ;  Hollingsworth  v.  Brodrick,  7 
Adolph.  &  Ell.  40;  Waters  v.  Merchants'  Louisville  Ins.  Co.,  11 
Peters'  R.  213 ;   Story's  Bailments,  s.  512. 

a  Story's  Bailments,  s.  512;  Crosby  v.  Fitch,  12  Conn.  Pt.  410; 
Fairchild  v.  Slocum,  19  AVend.  329.  The  Brig  Casco,  Davies'  II. 
184  ;  Williams  v.  Grant,  siqrra.  "  It  is  very  clear,"  observed  his 
honor,  Judge  Gould,  in  this  latter  case,  "  that  a  common  carrier 
is  liable,  under  a  general  acceptance,  for  all  losses,  except  such  as 
are  occasioned  by  inevitable  accident,  the  act  of  public  ememies, 
or  the  act  or  default  of  the  bailor  himself.  In  the  case  now  before 
the  Court,  neither  any  act  of  public  enemies,  nor  any  act  or  de- 
fault of  the  plaintiffs,  is  in  question.  ...  It  is  a  condition  prece- 
dent to  the  exoneration  of  common  carriers,  that  they  should  have 
been  in  no  default;  or,  in  other  words,  that  the  goods  of  the  bailor 
should  not  have  been  exposed  to  the  peril  or  accident  which  occa- 
sioned the  I0.S.S,  by  their  own  misconduct,  neglect,  or  ignorance. 
For  though  the  immediate  or  proximate  cause  of  a  loss  in  any 
given  instance,  may  have  been  what  is  termed  the  act  of  God,  or 


OF    THE    SHIP-OTTNER'S    RESPONSIBILITY.     297 

296.  If  a  rock  or  sand-bar,  on  which  a  vessel 
strikes,  was  generally  known,  then  it  was  the  duty 
of  the  master  to  have  known  and  avoided  it,  and 
the  loss  is  imputable  to  his  negligence.  If  the  situa- 
tion of  the  rock  or  sand-bar  was  not  generally  known, 
and  the  master  did  not  actually  know  it,  then  if  he 
conducted  properly  in  other  respects,  and  no  fault  is 
imputable  to  him,  his  striking  on  the  one  or  the 
other  would  be  a  peril  of  the  sea,  and  an  unavoidable 
accident ;  and  he  would  not  be  liable  for  the  loss. 
For  though  the  rock  or  sand-bar  had  been  there  for 
ages,  yet,  if  they  had  never  been  discovered  before, 
it  is  the  same  thing  as  if  they  had  been  placed  there 
immediately  before  the  accident  happened.^ 

297.  A  loss  by  lightning  is  within  the  exception 

inevitable  accident;  yet,  if  the  carrier  unnecessarily  exposed  the 
property  to  such  accident,  by  any  culpable  act  or  omission  of  his 
own,  he  is  not  excused.  I  recollect  a  case  put,  in  some  book,  to 
this  effect :  That  if  a  common  hoynian  unnecessarily  puts  to  sea, 
under  circumstances  which  render  a  loss  of  the  goods  on  board 
probable — as  in  very  tempestuous  weather — he  is  liable,  in  the 
event  of  a  loss,  though  it  were  immediately  occasioned  by  the 
elements,  over  which  he  had  no  control.  This  I  take  to  be  law." 
See  also  Garrett  v.  Davis,  0  Bing.  R.  710.  It  seems  to  have  been 
supposed  by  Gould,  J.,  in  Williams  v.  Grant,  siijn-a,  that  the 
phrases  "act  of  God,"  and  ''perils  of  the  sea,"  were  commensu- 
rate, and  of  cfjuivalent  import.  IJut  this  is  by  no  means  univcr- 
eally  true.  The  phrase  "perils  of  the  sea"  is  of  broader  com- 
pass than  the  phrase  "act  of  God."  See  M'Arthur  v.  Scars, 
21  Wend.  1!)0;  Story  on  Ikuhnonts,  .323;  2  Kent,  472;  The 
Recside,  2  Sum.  f)l\. 

'  Williams  V.  Grant,  siijira,  3  Kent,  217;  Story's  Bailments, 
B.  51C,;  1  J'liillips  (in  Insurance,  249;  lloccus,  N.  55,60;  The 
William,  0  Il-b.  II.  :',\(\;  Ilahn  v.  Corbett,  2  Bing.  11.  205; 
Smith  v.  Shepherd,  cited  Abbott  on  Shipp.  399,  409. 


298  THE   LAAV  OF   snirriNG. 

of  the  act  of  God ;  but  a  loss  by  fire,  proceeding  from 
any  other  cause,  is,  according  to  the  doctrine  of  the 
common  law,  chargeable  upon  the  ship-owner.  The 
same  doctrine  applies  to  the  case  of  vessels  propelled 
by  steam.  True,  in  vessels  so  propelled,  it  may  be 
diflicult  to  prevent  conflagration,  but  accidents  of 
that  nature,  it  cannot  be  said,  are  beyond  the  power 
of  human  skill  and  prudence/ 

298.  This  principle  governed  the  decision  of  the 
Court  in  Harrington  v.  M'Shane.^  The  fire  which 
consumed  or  occasioned  the  loss  of  the  shipper's  pro- 
perty, was  the  result  of  accident,  without  any  neglect 
of  the  master  and  crew ;  they  on  the  contrary  having 
used  every  possible  exertion  to  rescue  it  from  the 
flames.  The  circumstances  that  distinguish  this 
case  were  peculiar.  It  appeared  by  the  evidence, 
that  it  was  the  usage  on  the  western  waters  for 
steamboat  owners,  in  addition  to  the  business  of  car- 
rying goods,  to  act  as  factors,  to  make  sales  and  re- 
turns, without  being  paid  any  other  consideration 
than  freight.  It  also  appeared,  that  the  carrier,  by  his 
agent,  who  was  also  part-owner  in  the  boat,  received 
the  shipper's  flour,  to  transport  to  Louisville,  and 
sell,  in  consideration  of  being  paid  a  certain  freight 
per  barrel.  The  flour  was  taken  to  Louisville  and 
sold,  and  the  money  which  it  produced  was  in  the 
boat  on  its  return  up  the  river,  separated  from  other 
moneys,  and  was  destroyed  by  a  Are  which  consumed 
the  boat  and  its  contents.  Sergeant,  J.,  in  deliver- 
ing the  opinion  of  the  Court,  after  observing,  that  a 

1  3  Kent,  217  j  Gilmore  v.  Carman,  1  Smedes  &  Mar.  R.  279. 

2  2  Watts,  443. 


OF    THE    ship-owner's    RESPONSIBILITY.    299 

common  carrier  is  responsible  for  all  losses  in  the 
course  of  his  employment  as  such,  except  those  occa- 
sioned by  the  act  of  God  or  the  public  enem}^,  but 
that  a  consignee  or  factor,  on  the  other  hand,  was 
resiDonsible  only  for  negligence,  proceeded  as  follows : 
"  The  question  of  the  defendants'  responsibility  in 
the  present  case,  depends  on  the  character  in  which 
they  held  this  money  when  the  loss  occurred.  If 
they  were  merely  factors,  they  are  not  responsible ; 
if  they  were  carriers,  the  reverse  must  be  the  case. 
Had  the  flour  been  lost  in  the  descending  voyage  by 
a  similar  accident,  there  could  be  no  doubt  whatever 
of  the  defendants'  liability ;  they  were  certainly  trans- 
porting it  in  the  character  of  carriers.  On  their  arrival 
at  the  port  of  destination  and  landing  the  flour  there, 
this  character  ceased,  and  the  duty  of  factor  com- 
menced. When  the  flour  was  sold,  and  the  speciflc 
money,  the  proceeds  of  sale,  separated  from  other 
moneys  in  the  defendants'  hands,  and  set  apart  for 
the  plaintiffs,  was  on  its  return  to  them  by  the  same 
boat,  the  character  of  carrier  reattached.  The  re- 
turn of  the  proceeds  by  the  same  vessel  is  within  the 
receipt  and  the  usage  of  trade  as  proved,  and  the 
freight  paid,  may  be  deemed  to  have  been  fixed  with 
a  view  to  the  whole  course  of  the  trade,  eml)racing 
a  reward  for  all  the  duties  of  transportation,  sale, 
and  return.  11'  the  defendants,  instead  of  bringing 
the  money  home  in  their  own  vessel,  had  sent  it  on 
freight  by  another,  there  would  have  been  to  the 
plaintiffs  tlie  responsibility  of  a  carrier,  and  there 
ought  not  to  be  less  if  they  chose  to  bring  it  them- 
selves. If  they  had  mixed  the  money  up  with  their 
own  they  woidd  have  no  excuse  for  non-payment. 


o 


00  THE    LAW    OF    SHIPPING. 


The  defendants  can  be  relieved  from  responsibility 
only  by  holding  that  the  character  of  carrier  never 
existed  between  these  parties  at  all,  or  that  if  it 
existed  on  the  descending  voyage,  it  ceased  at  its  ter- 
mination, and  that  of  factor  began  and  continued 
during  the  ascending  voyage.  But  if  the  defendants 
bring  back,  in  the  same  vessel,  other  property,  the 
proceeds  of  the  shipment,  whether  specific  money  or 
goods,  they  do  so  as  carriers,  and  not  merely  as 
factors." 

299.  The  Court  proceeded  upon  the  same  principle 
in  the  case  of  Patton  v.  M'Grath.'  That  was  an 
action  for  the  value  of  a  quantity  of  cotton  burned 
on  board  of  a  steamboat.  It  appeared  that  proper 
diligence  had  been  used,  but  still  the  owners  were 
held  liable.  There  was  also  an  attempt  to  defend 
the  action  on  the  ground  that  usage  or  custom  ex- 
onerated the  owners  in  such  cases,  where  they  had 
used  proper  diligence.  The  Court  held  that  no  dis- 
tinction could  be  taken  between  steamboats  and 
other  vessels ;  that  all  were  alike  liable  in  such  a 
case ;  and  that  custom,  to  constitute  an  exception  to 
the  rule  of  law,  must  have  been  immemorial,  certain, 
and  reasonable. 

300.  By  the  civil  law,  if  the  master  and  crew  use 
proper  diligence,  and  notwithstanding  the  vessel  or 
steamboat  is  destroyed  by  fire,  the  owner  is  not 
liable.^     The  maritime  law,  in  this  particular,  con- 

'  1  Dudley's  R.  159 ;  5  Yerger,  71. 

2  Hunt  V.  Morris,  G  Martin's  Louis.  E.  676.  See  also  Hunter 
V.  The  Morning  Star,  Newfoundland  R.  270,  cited  3  Kent,  210. 


OF    THE    ship-owner's    RESPONSIBILITY.     301 

forms  to  the  civil,  upon  which,  indeed,  it  is  partially 
based,  and  from  which  it  derives,  as  from  a  pure  and 
perennial  spring,  many  of  its  most  distinguishing  and 
valuable  principles.  "Whether,  however,  our  Courts 
of  Admiralty  would  feel  themselves  at  liberty  to 
adopt,  in  this  respect,  the  doctrine  of  the  civil,  in 
preference  to  that  of  the  common  law,  is  questionable. 
Our  American  maritime  law,  and  the  same  observa- 
tion is  applicable  to  the  English  maritime  law,  by 
the  influence  of  usage,  and  the  incorporation  into  it 
of  many  of  the  principles  of  the  prevailing  law  of  the 
land,  stands  upon  a  somewhat  different  foundation 
from  the  general  law  of  Europe. 

301.  If  the  carrier  receives  goods,  subject  to  cer- 
tain directions  of  the  shipper  as  to  how  they  shall 
be  carried,  as,  for  instance,  if  he  receives  a  box, 
marked,  "glass — with  care — this  side  up,"  he  is 
bound  to  carry  it  in  the  manner  and  position  re- 
quired by  the  notice.  The  carrier,  it  is  true,  has 
the  right  to  fix  his  own  rate  for  the  carriage,  or  re- 
fuse altogether  to  take  the  goods  with  such  direc- 
tions. But  having  taken  them,  he  is  bound  to  carry 
them  according  to  the  direction.^ 

302.  11'  he  fails  to  do  so,  and  the  goods  are  injured  in 
consequence,  he  will  be  responsible  for  the  damages. 
His  faihire  to  carry  them  in  the  manner  directed,  is 
evidence  ]K)th  of  negligence  and  breach  of  contract; 
still,  if  the  loss  was  not  the  consequence  of  such  negli- 
gence, the  carrier  is  not  the  more  responsible  on  that 

*  Haatinga  v.  Pepper,  11  Pick.  R.  41. 


302  THE    LAT7    OF    SIIirPING. 

account.  But  the  carrier  is  bound  to  stand  to  the  loss, 
unless  he  can  prove  affirmatively  and  beyond  reason- 
able doubt,  what  was  the  cause  of  the  loss,  and  that 
such  cause  was  not  attributable  in  any  degree  to  his 
nedisence  or  breach  of  contract.'  This  we  think  is 
the  reasonable  doctrine.     The  authorities,  however, 


«  Hastings  v.  Pepper,  11  Pick.   R.  41.     See  also  Crosby  v. 
Fitcb,  12  Conn. ;  Garrett  v.  Davis,  6  Biug.  716.     It  was  urged 
in  this  case,  that  there  was  no  natural  or  necessary  connexion 
between   the  wrong  of  the  master  in  taking  the  barge  out  of 
its  proper  course,  and  the  loss  itself;  for,  it  was  contended,  the 
same  loss  might  have  happened  by  the  very  same  tempest,  if 
the  barge  had  proceeded  in  her  direct  course.     Tindal,  C.  J., 
replied  to  this  argument  as  follows:  "If  this  argument  were 
to  prevail,  the  deviation  of  the  master,  which  is  undoubtedly  a 
ground  of  action  against  the  owner,  would  never,  or  only  under 
very  peculiar  circumstances,  entitle  the  plaintiff  to  recover.     For, 
if  a  ship  is  captured  in  the  course  of  deviation,  no  one  can  be  cer- 
tain that  she  might  not  have  been  captm-ed  if  in  her  proper  course. 
And  yet  in  Parker  v.  James,  4  Camp.  R.  112,  where  the  ship  was 
captured  whilst  in  the  act  of  deviation,  no  such  ground  of  defence 
was  even  suggested.     Or,  again,  if  the  ship  strikes  against  a  rock, 
or  perishes  by  a  storm  in  the  one  course,  no  one  can  predict,  that 
she  might  not  equally  have  struck  upon  another  rock,  or  met  with 
the  same  or  another  storm,  if  pursuing  her   right  or  ordinary 
voyage.    The  same  answer  might  be  attempted  to  an  action  against 
a  defendant  who  had,  by  mistake,  forwarded  a  parcel  by  the  wrong 
conveyance,  and  a  loss  had  thereby  ensued  ;  and  yet  the  defendant 
in  that  case  would  undoubtedly  be  liable."     But  the  real  answer 
to  the  objection  taken  by  the  counsel,  was,  observed  the  learned 
Judge,  "  that  no  wrongdoer  can  be  allowed  to  apportion  or  qualify 
his  own  wrong ;  and  that  as  a  loss  has  actually  happened  whilst 
his  wrongful  act  was  in  operation  and  force,  and  which  is  attribu- 
table to  his  wrongful  act,  he  cannot  set  up  as  an  answer  to  the  action, 
the  bare  possibility  of  a  loss,  if  his  wrongful  act  had  never  been 
done.    It  mi(jlit  admit  of  a  different  construction,  if  he  could  shoio, 
not  only  that  the  same  loss  mi/jht  have  happened,  hut  that  it  must 


OF    THE    SHIP-OTFNER   S    RESPONSIBILITY.     303 

are  not  entirely  in  harmony  with  it.  One  class  of 
cases  has  proceeded  upon  the  principle,  that  where 
the  carrier  has  been  guilty  of  deviation  or  breach  of 
contract,  he  thereby  becomes  an  insurer,  and  is  ab- 
solutely responsible  for  any  loss  or  injury  that  may 
occur.  Another  class,  on  the  other  hand,  has  held, 
that  the  carrier  is  only  responsible  for  such  loss  or 
iujury  as  results  from  the  deviation  or  breach  of 
contract.  This,  with  the  qualification  that  the  onus 
is  upon  the  carrier  to  show,  that  the  loss  or  injury 
would  equally  have  happened  had  there  been  no 
breach  of  contract  or  deviation,  is  founded  upon  the 
correct  principle,  and  is  supported  by  the  weight  of 
authority.^ 

303.  The  freezing  of  canals  or  rivers  is  such  an 

have  happnted,  if  the  act  complained  of  had  not  been  done."  See 
also  Williams  v.  Grant,  1  Conn.  492 ;  Read  v.  Com.  Ins.  Co.,  3 
Johns.  11.  348 ;  Urqubart  v.  Barnard,  1  Taun.  45G ;  Ilugbcs  on 
Ins.  197;  3  Kent,  1G5  j  Pothier,  Contrat  de  Louagc,  s.  410;  Du 
a  Vv^t  Usage,  s.  56,  57. 

'  See  the  foregoing  cases,  also  Souter  v.  Baymore,  7  Barr,  415 ; 
The  Ninctta,  Crabbe's  11. ;  Powers  v.  Davenport,  7  Blackf.  (la.) 
R.  495  ;  Hart  v."  Allen,  2  Watts,  114;  Dick  v.  Reed,  8  Id.  479. 
Sec  also  liunguist  v.  DitcbcU,  3  Esp.  N.  P.  R.  G4 ;  Magalhacra 
V.  Bushcr,  4  Caiup.  54,  These  cases  establish  the  doctrine,  that 
if  a  ship  be  advertised  by  the  agent  of  the  owner  for  freight  as  a 
general  siiip,  and  the  notice  states  that  she  is  to  sail  with  convoy, 
this  amounts  to  an  engagement  to  that  effect ;  and  if  she  sails 
without  convoy  and  is  lost,  the  owner  becomes  answerable  to  the 
shipper  in  damages  for  the  breach  of  that  representation.  3  Kent, 
200  ;  Wilcox  V.  I'annlce,  3  Sandf  Sup.  C.  R.  010. 

The  common  law  rcspon.sibility  of  a  carrier  may  be  abridged  by 
the  special  terms  of  the  acceptance  of  the  goods ;  but  these  arc 
exceptions  which  leave  the  common  law  rule  in  force  as  to  all 
beside,  and,  it  being  the  business  of  the  carrier  to  bring  his  case 


304  THE    LAW    OF    siiirriNG. 


intervention  of  the  vis  major,  as  excuses  the  delay  of 
the  common  carrier  by  water.  In  respect  to  the  time 
of  delivery,  he  is  responsible  only  for  the  exertion  of 
due  diligence.  In  this  particular,  he  stands  upon 
the  same  ground  with  other  bailees,  and  may  excuse 
delay  in  the  deli^'ery  of  goods  by  accident  or  mis- 
fortune, although  not  inevitable,  or  produced  by  the 
act  of  God.  But  he  is  bound  to  exercise  at  least 
ordinary  forecast  in  anticipating  the  obstruction ;  to 
exert  the  proper  means  for  overcoming  it ;  and  to 
exercise  due  diligence  in  accomplishing  the  transpor- 
tation so  soon  as  it  ceases  to  operate.  In  the  mean- 
time, he  must  not  be  guilty  of  negligence  in  taking 
care  of  the  goods  detained.  If,  however,  the  com- 
mon carrier  has  been  guilty  of  negligence,  and  the 
goods  of  the  shipper  are  injured  in  conveyance,  his 
acceptance  of  them  does  not  bar  his  right  of  action. 
That  fiict,  however,  may  be  given  in  evidence  in 
mitigation  of  damages.' 

distinctly  within  them,  they  are  to  be  strictly  interpreted.  Ex- 
cepted "  dangers  of  the  navigation"  of  a  public  canal  are  such  as 
are  incident  to  it  when  the  trip  is  made  in  conformity  to  the  public 
regulations,  of  which  the  carrier  is  bound  to  take  notice ;  conse- 
quently damage  from  bilging  in  a  lock  which  was  entered  in  con- 
travention of  the  rules,  must  be  compensated  by  him.  Atwood  v. 
The  Reliance  Transportation  Company,  9  Watts,  87 ;  Hand  v. 
Baynes,  4  Whart.  204;  Fairchild  v.  Slocum,  19  Wend.  329; 
M' Arthur  v.  Sears,  21  Wend.  190  ;  Rathborne  v.  Neal,  4  Louis. 
R.  563. 

»  Bowman  v.  Teall,  23  Wend.  306 ;  Parsons  v.  Hardy,  14  Id. 
215  ;  Crosby  v.  Fitch,  12  Conn.  410;  Baylis  v.  Usher,  4  Moore 
&  Payne,  790 ;  Willoughby  v.  Backhouse,  4  D.  &  R.  539  ;  Sells 
V.  Hoare,  8  Moore,  451.  In  the  recent  case  of  Morrison  v.  Davis, 
reported  in  the  American  Law  Register  (May  No.  1853),  p.  436, 


OF    THE     ship-owner's    RESPONSIBILITY.      305 

304.  The  carrier  is  not  excused  for  any  loss  arising 
from  human  action  or  neglect,  or  any  combination 
of  such  action  or  neglect,  except  force  exerted  by  a 
public  enemy.  No  matter  what  degree  of  prudence 
may  be  exercised  by  the  carrier  and  his  servants ; 
although  the  delusion  by  which  it  is  baffled,  or  the 
force  by  which  it  is  overcome  be  inevitable,  yet  if  it 
be  the  result  of  human  means,  the  carrier  is  respon- 
sible. Thus  the  owners  of  a  steamboat  were  held 
liable  for  a  loss  occurring  from  a  mistaken  deviation, 
to  which  the  master  was  led  by  a  concourse  of  cir- 
cumstances over  which  he  had  no  control.  The  dis- 
aster happened  to  the  vessel  in  an  attempt  to  enter 


wLich  was  assumpsit  against  a  carrier,  it  appeared  that  the  defen- 
dant's canal  boat,  in  which  the  goods  were  carried,  was  wrecked 
on  the  Pennsylvania  canal,  by  reason  of  an  extraordinary  flood  ; 
that  the  boat  had  started  on  its  voyage  with  one  lame  horse ;  ihat 
hy  rrason  of  thh,  great  delay  had  been  occa.sioned  in  making  the 
voyage ;  and  that  had  it  not  been  for  (hix,  the  boat  would  have 
passed  the  point  where  the  accident  occurred.  It  was  held  by  the 
Court  (the  Supreme  Court  of  Pennsylvania),  that  the  accident  was 
not  the  ordinary  or  proximate  result  of  the  original  negligence  of  i 
the  carrier,  and  consequently  that  he  was  not  liable  therefor.  In 
cases  of  peril  by  extraordinary  accident,  the  law  requires  of  car- 
riers, said  the  Court,  ordinary  care,  skill,  and  foresight,  to  avoid 
the  consequences  likely  to  ensue. 

It  was  held  by  the  Court,  that  the  usual  exceptions  in  a  bill  of 
lading  arc  prima  facie  to  be  implied,  when  omitted.  And  that 
in  such  a  case,  oral  testimony  connected  with  advertisements  and 
circulars  of  the  carrier  is  admissible  to  show  that  the  latter  had 
agreed  tn  insure  the  safe  delivery  of  the  goods  at  all  events  and 
withrtut  exception,  and  that  it  is  not  necessary  for  the  shipper  to 
show  that  the  advertisements  had  come  to  his  knowlcdire  before 
the  time  of  the  delivery  of  the  goods.  Sec  Morrison  v.  31'Padden, 
10  P.  L.  J.  4Gii. 

20 


306  THE    LAW    OF     SlIirPING. 

the  harbor  of  Erie.  It  was  niglit,  the  weather  was 
hazy,  with  Ihirries  of  snow.  The  beacon  light,  on 
the  end  of  the  pier,  was  seen  occasionally  through 
the  Hurries  of  snow.  Besides  the  beacon  light,  there 
was  usually  a  light  at  the  Avindow  of  the  house  of 
the  keeper  of  the  beacon  light,  bearing  southwest, 
about  fifty  rods  distant  from  the  beacon  light,  and 
the  usual  way  of  steering  into  the  channel  was  to 
briug  the  beacon  light  and  the  light  in  the  keeper's 
house  into  a  range,  and  take  them  as  a  guide  in 
entering  the  harbor.  A  light  was  observed,  which 
was  supposed  to  be  the  light  in  the  keeper's  house, 
but  which  proved  to  be  a  light  on  board  another 
steamboat,  the  North  America,  which  had  been 
driven  ashore  in  a  previous  gale,  and  in  navigating 
the  vessel  so  as  to  bring  in  a  range  the  two  lights, 
that  is,  the  beacon  light  and  the  light  on  board  the 
North  America,  which  was  mistaken  for  the  light  in 
the  keeper's  house,  the  boat  struck  on  a  shoal.  After 
she  struck  and  got  on  the  shoal,  the  wind  blew  hard, 
the  sea  ran  high,  and  the  vessel  labored,  strained, 
and  pounded  very  hard,  which  made  it  necessary  to 
throw  the  03^sters  overboard  to  save  the  vessel  and 
cargo.  It  was  proved  that  the  master  of  the  Colum- 
bus was  one  of  the  most  competent  masters  of  steam- 
boats on  the  lake,  and  that  the  most  prudent  master 
might  have  run  his  boat  ashore  under  the  existing 
circumstances.  It  was  held  by  the  Court,  that 
nothing;  will  excuse  the  carrier  but  inevitable  acci- 
dent,  without  the  intervention  of  man,  and  the  acts 
of  public  enemies ;  that  neither  of  the  exceptions 
existed  in  this  case ;  and  that  proof  of  the  utmost 
vigilance  and  care  on  the  part  of  the  master  w^as 


OF    THE    SniP-OTVNER's    RESPONSIBILITY.     307 

irrelevant  and  inadmissible  in   defence  of  the  ac- 
tion/ 

305.  The  carrier  will  not  be  excused  for  a  loss 
occurring  from  the  breaking  of  a  rudder,  notwith- 
standing he  shows  that  he  had  sent  the  vessel  to  be 
repaired  by  a  skilful  workman,  who  made  the  rud- 
der, which  was  apparently  sound,  but  in  fact,  inter- 
nally rotten,  of  which  defect,  however,  he  was 
wholly  ignorant/  When,  however,  the  loss  happens 
from  the  vessel  being  forced  by  the  wind,  or  other 
and  inevitable  cause,  against  some  permanent  artifi- 
cial object,  as  the  pier  of  a  bridge  erected  by  another, 
in  that  case  the  carrier  will  be  excused.^     So  too,  he 

'  M' Arthur  v.  Scars,  21  Wend.  K.  190.  In  this  case,  there 
■was  no  exception  in  the  bill  of  lading,  and  of  course  the  defendant 
stood  chargeable  as  a  common  carrier  without  qualification.  In 
Story  on  Bailments,  334,  s.  518,  the  doctrine  there  laid  down 
would  seem  to  militate  against  the  doctrine  of  the  text.  Mr.  Jus- 
tice Story  seems  to  suppose,  that  if  an  obstruction  be  secretly  sunk 
in  the  stream,  and  not  being  known  to  the  carrier,  his  boat  founder, 
he  would  be  excused.  "  But  the  cases,"  says  Cowen,  J.,  in 
M'Arthur  V.  Sears,  sup7-n,  "  do  not  appear  to  sustain  him,  unless 
the  obstruction  were  .sunk  by  the  act  of  God,  as  by  a  sudden  and 
extraordinary  flood.  This  may  change  the  position  of  the  shore, 
raise  a  mud  bar,  or  sink  obstructions  unknown  to  the  approaching 
navigator.  If  it  arise  from  ordinary  causes,  it  would  be  otherwise, 
for  the  carrier  undertakes  against  these.  Should  a  navigator,  by 
mistake,  run  against  a  snag  in  a  river  where  such  obstructions  arc 
known  to  abound,  as  in  tlic  Kiver  iratchic,  4  Ycrg.  Miss.  II.  49, 
whatever  might  be  his  care,  he  would  not  be  cxcu.sed  without  an 
exception  in  the  bill  of  lading  of  dangers  of  the  river.  This,  I 
think,  is  clearly  collectible  from  the  cases  already  cited  of  John- 
son V.  Friar,  4  Ycrg.  48,  and  fjiordon  v.  Buchanan,  5  Id.  71." 

"  Backliou.sc  V.  Snccd,  1  Murph.  173. 

=•  Amies  V.  Stevens,  1  Str.  1'2«  ;  Colt  v.  M'Mcchen,  G  Johns. 
B.  1G5;  M'Arthur  v.  Sears,  21  Wend.  II.  190. 


308  THE     LAW    OF     SHIPPING. 

will  be  excused,  under  the  exceptions  of  "  perils  of 
the  sea,"  when  the  loss  arises  from  a  collision  with- 
out ftiult  of  either  party. ^  In  Smith  v.  Scott,^  which 
was  an  action  upon  a  policy  of  insurance,  it  was 
held,  that  a  loss  occasioned  by  another  ship  running 
down  the. ship  insured,  through  gross  negligence,  is 
a  loss  by  "  perils  of  the  sea." 

306.  Mansfield,  C.  J.,  said :  "I  do  not  know  how 
to  make  this  out  not  to  be  a  peril  of  the  sea.  What 
drove  the  Margaret  against  the  Helena?  the  sea! 
What  was  the  cause  that  the  crew  of  the  Margaret 
did  not  prevent  her  from  running  against  the  other? 
their  gross  and  culpable  negligence !  but  still  the 
sea  did  the  mischief  It  is  reasonable  enough  that 
the  plaintiffs  should  permit  the  defendant  to  use 
their  names  as  plaintiffs  against  the  owners  or  crew 
of  the  Margaret,  so  as  to  recover  whatever  the  plain- 
tiffs would  be  entitled  to  as  against  the  Margaret, 
and  to  apply  it  in  diminution  of  their  loss ;  but  it 
would  lead  to  endless  discussion,  if  it  were  required 
that  no  cause  except  the  cause  of  loss  alleged  in  the 
declaration  should  be  conducive  to  the  loss." 

307.  A  collision  occurring  from  the  negligence  of 
the  injuring  ship,  is  deemed,  therefore,  in  the  law  of 
insurance,  a  peril  of  the  sea,  and  the  underwriters 
are  held  liable.  Whether  the  carrier  should  be  ex- 
cused upon  the  same  ground,  viz.,  that  the  loss  arose 
from  a  collision  not  in  any  manner  imputable  to  him, 

'  Story  oa  Bailments,  sec.  512,  514;  Buller  v.  Fisher,  3  Esp. 
67. 

"  4  Taunt.  R.  125. 


OF  THE  ship-owner's   respoxsibilit y.     309 

seems  to  be  assumed  by  the  text  writers  as  settled 
law.  But  it  is  doubtful  whether,  upon  strict  princi- 
ple, this  is  correct.  Lord  Kenyon,  in  Buller  v. 
Fisher,'  put  his  decision  upon  the  ground  that  the 
misfortune  happened  without  fault  in  either  party. 

308.  When  a  ship  was  moored  in  a  harbor,  having 
a  hard,  uneven  bottom,  and  being  left  by  the  tide  at 
night,  a  noise  was  heard  as  of  timber  breaking,  and 
on  the  reflux  of  the  tide,  there  being  a  considerable 
swell  in  the  harbor,  she  struck  the  ground  hard 
several  times,  and  in  the  morning  several  of  her 
knees  were  found  to  be  broken ;  this  damage  was 
held  to  be  a  loss  by  perils  of  the  sea.^  When  a  vessel 
runs  aground  without  any  fault  of  the  master,  but  in 
consequence  of  a  sudden  failure  of  the  wind,  this 
will  excuse  the  carrier  for  any  loss  thereby  occurring. 
The  failure  of  the  wind  is  deemed  to  be  inevitable 
accident.^ 

309.  The  destruction  of  a  ship's  bottom  by  worms 
in  the  course  of  a  voyage,  has  been  deemed  not  to 
be  a  peril  of  the  sea,  both  in  England  and  America, 
and  upon  the  ground  that  it  is  a  loss  by  ordinary 
wear  and  decay.'     When  damage  is  done  to  a  cargo 


'  Supra.     See  Abbott  on  Sliipp.  313  ;  3  Kent,  217. 
»  Fletcher  v.  Inglis,   2  B.  &  A.  315;   Abbott  on  Sliipp.  474; 
Potter  V.  SufTolk  Ins.  Co.,  2  Sum.  107. 

•  Colt  V.  M'.Mceii.n,  0  JoliriH.  R.  KiO.  It  was  hel.l  in  tho  case 
of  Hoycc  V.  Welch,  5  Louis.  R.  G23,  that  when  a  steamboat  loses 
a  portion  of  her  cargo  in  conse(|uencc  of  being  snagged,  tho  los.s  is 
considercfl  as  one  falling  wifliin  the  perils  of  the  river,  and  liic 
vessel  is  not  liable. 

*  Story  ou  Railmcnts,  SCO.  513;  Abbott  on  Shipp.  474  ;  Jlulil 


310  THE   LAW   OF   snirriNG. 

by  water  escapini];  through  the  pipe  of  a  steam-boiler, 
in  consequence  of  the  pipe  having  been  cracked  by 
frost,  this  is  deemed  to  be  a  loss  from  negligence.  It 
is  well  known  that  frost  will  rend  iron ;  and  if  so, 
the  master  of  a  vessel  cannot  be  justified  by  keeping 
water  within  his  boiler  in  freezing  weather.  It  is 
negligence  to  do  so.' 

310.  If  the  master  should  fraudulently  bore  holes 
in  the  bottom  of  the  ship,  in  order  to  sink  her ;  or 
should  fraudulently  run  her  on  shore,  or  fraudulently 
cut  her  from  her  moorings,  and  she  should  drift  upon 
rocks ;  or  he  should  fraudulently  desert  her  at  sea, 
whereby  she  should  founder :  in  all  these  cases,  if 
the  cargo  or  freight  is  lost  or  damaged,  the  loss  or 
damage  must  be  borne  by  the  owner  of  the  ship ; 
for  it  is  in  no  just  sense  a  loss  by  the  perils  of  the 
sea.^ 

311.  We  may  here  observe,  that  a  contract  to 
forward  goods  from  one  place  to  another  and  distant 
place,  subjects  the  party  to  liability  as  a  common 
carrier  for  the  whole  route,  although  his  own  trans- 
portation line  extends  only  a  part  of  the  distance, 

V.  Parr,  1  Esp.  445  ;  Martin  v.  Salem  Ins.  Co.,  2  Mass.  R.  429 ; 
Hazard  v.  New  England  Ins.  Co.,  1  Sum.  218  ;  S.  C,  8  Peters' 
E.  557.  Sec,  however,  Dc  Peyster  v.  Columbian  Ins.  Co.,  2 
Caines  R.  85.  As  to  losses  by  rats,  see  ante,  p.  263,  and  Hunter 
V.  Potts,  4  Camp.  203. 

»  Siordct  V.  Hall,  4  Ring.  R.  607. 

'  Story's  Bailments,  s.  510;  Waters  v.  The  Merchants'  Louis- 
ville Ins.  Co.,  11  Peters'  R.  213. 


OF   THE   ship-owner's    RESPONSIBILITY.       311 

and  the  loss  occurs  on  a  portion  of  the  route  in  which 
he  is  not  interested/ 

312.  We  have  observed  in  another  place,  that 
whatever  care  and  diligence  may  have  been  shown 
in  jDreparing  a  vessel  for  her  voyage,  and  in  render- 
ing her  staunch  and  strong,  yet,  if  in  fact  she  was 
not  so,  the  owners  will  be  responsible  for  any  damage 
resulting  therefrom  to  the  shippers.  And,  therefore, 
where  a  vessel,  in  consequence  of  unseaworthiness 
existing  at  the  commencement  of  the  voyage,  and 

»  Wilcox  V.  Parraclce,  3  Sandf.  Sup.  Ct.  R.  610.  The  plaintiff 
in  this  case,  purchased,  in  the  city  of  New  York,  a  quantity  of 
merchandise,  which  the  defendant  undertook  to  forward  from 
thence  to  Fairport,  Ohio,  by  a  written  agreement,  for  fifty  cents 
by  vessel,  and  sixty-five  cents  per  100  lbs.  by  steam.  Those 
goods  marked  "  steam,"  to  go  by  steam,  and  all  other  goods  ''  to 
be  shipped  by  vessel  from  Buffalo."  Certain  goods  were  marked 
to  go  by  steam,  but  they  were  sent  forward  from  Buffalo  in  a  sail- 
ing vessel,  and  were  lost  in  a  gale  on  Lake  Eric.  It  appeared  that 
the  defendant  owned  a  line  of  boats  on  the  canal  between  Albany 
and  Buffalo,  but  that  he  had  no  vessels  on  Lake  Erie.  Held  that 
the  defendant,  by  the  terms  of  his  contract,  was  a  common  carrier 
from  New  York  to  Fairport,  and  not  merely  on  the  canal,  and  that 
he  was  liable  for  the  loss. 

In  the  recent  case  of  Dcvillers  v.  Schooner  John  Bell,  G  Louis, 
344,  it  was  held,  that  where  a  vessel  undertakes  to  transport  mer- 
chandise from  one  place  to  another,  giving  a  bill  of  lading  in  the 
usual  form,  in  case  a  rcshipmcnt  become  necessary,  she  is  bound 
to  employ  a  seawfirthy  vessel.  If  iIk'  goods  arc  lost  in  conse- 
quence of  the  unseaworthiness  of  the  vessel  on  which  they  were 
reshipped,  the  vessel  originally  employed  will  be  held  liable  for 
their  value.  But  if  she  iiad  only  contracted  to  carry  the  goods 
from  one  point  to  another,  from  which  latter  place  they  were  to  be 
reshipped,  the  vessel  is  only  liable  as  a  forwarder  of  merchandise, 
and  is  only  bound  to  exercise  ordinary  care  iu  procuring  a  proper 
conveyance  for  the  goods. 


312  THE    LAW    OF    siiirriNG. 

not  from  any  perils  of  the  sea  or  accident,  is  com- 
pelled to  put  into  an  intermediate  port  for  repairs, 
where  she  is  kept  a  much  longer  time  than  necessary 
to  prepare  her  for  the  completion  of  her  voyage,  the 
owners  will  be  responsible  to  the  freighters  for  any 
damage  resulting  from  the  delay  in  the  delivery  of 
the  cargo,  occasioned  by  her  unseaworthiness  and 
unnecessary  detention.' 

313.  A  carrier  is  bound  not  only  to  transport  the 
goods  intrusted  to  him,  safely,  but  to  do  so  within 
a  reasonable  time,  and  he  is  bound  to  account  for  the 
value  at  the  expiration  of  that  time.  It  is  as  much 
a  part  of  his  contract  as  to  deliver  them  in  good  con- 
dition ;  and  in  commercial  adventures,  time  is  one 
of  the  elements  upon  which  they  are  undertaken, 
and  controls  their  results.  The  consignee,  in  such 
a  case,  does  not  lose  his  right  of  action  by  receiving 
the  goods  and  disposing  of  them.  This  may  be  con- 
sidered in  mitigation  of  damages,  but  the  cause  of 
action  having  accrued  by  the  delay,  the  carrier  is 
bound  to  make  good  the  loss  resulting  from  his  ne- 
glect, and  the  acceptance  of  the  goods  is  no  bar  to 
the  action.^ 


'  Rathbonc  v.  Neal,  4  Louis.  R.  563. 

3  Ibid.  See  also,  Bowman  v.  Teal,  23  Wend.  R.  306 ;  Hart  v. 
Ship  Jane  Ro.ss,  5  Louis.  R.  264.  In  this  latter  case,  it  was 
held,  that  vessels  are  liable  for  loss  and  injury  to  goods  shipped, 
occurring  from  improper  delay  in  not  sailing  at  the  appointed 
time  ;  but  the  amount  of  damage  must  be  shown  by  evidence.  It 
appeared  at  the  trial,  that  the  public  advertisement  and  the  private 
assurance  to  the  shipper  was  of  the  most  positive  character  as  to 
the  time  of  the  vessel's  sailing;  but  that  these  assurances  were 
disappointed  for  the  convenience  and  interest  of  the  ship-owners. 


OF    THE     ship-owner's     RESPONSIBILITY.      313 

314.  A  vessel  is  not  liable  for  damages  caused  to 
goods  from  the  "  sweating  of  the  hold,"  M-heu  the 
vessel  has  been  supplied  with  proper  ventilators. 
But  even  in  that  case,  if  the  injury  was  in  conse- 
quence of  improper  storage,  the  vessel  will  be  held 
liable.' 

—       ,      ,   ■  -  ,      , . . — _ 

The  vessel  did  not  put  to  sea  until  about  twenty  days  after  the 
time  promised.  There  was  a  good  deal  of  testimony  going  to  show 
that  transient  ships  (as  distinguished  from  packet  ships),  are  usu- 
ally wanting  in  punctuality,  and  that  the  public  do  not  rely  nor  act 
upon  what  the  agents  of  such  vessels  promise.  But  the  Court  said, 
that  such  evidence  of  usage  should  have  little  favor  before  tribu- 
nals of  justice. 

See  the  case  of  Holland  v.  Cammel,  5  Louis.  R.  705,  as  to 
burden  of  proof,  in  actions  against  common  carriers.  The  Su- 
preme Court  of  Louisiana,  in  this  case,  assert  the  common  and 
familiar  doctrine,  that  when  the  damage  is  proved,  then  the  carrier 
is  bound  to  show  that  it  did  not  happen  on  board  the  vessel,  or 
■whilst  the  goods  were  under  his  control  and  custody.  Sec  also, 
Montgomery  v.  Ship  Abby  Pratt,  Id.  410. 

'  Montgomery  v.  Ship  Abby  Pratt,  supi-a  ;  Glover  v.  Dufour, 
6  Louis.  R.  490.  In  Boyce  v.  Welch,  5  Id.  G23,  it  was  held  that 
a  loss  occurring  from  a  steamboat  being  snagged,  is  a  loss  by  a 
peril  of  the  river,  and  the  vessel  is  not  liable. 


314 


CHAPTER    XIII. 

OF  THE  SEAMAN'S  REMEDY  FOR  HIS  WAGES. 

315.  The  voyage  performed,  the  mariner  is  en- 
titled to  his  wages.  We  shall  consider  in  this  chapter 
the  mode  by  which  he  may  enforce  payment,  when 
they  are  withholden  from  him.  Seamen  are  treated 
as  wards  of  the  Admiralty.  It  watches  over  their 
interests  with  peculiar  care ;  it  enforces  their  rights 
with  a  strong  hand.  Their  service  is  a  hard  and 
hazardous  one.  Their  compensation  is  small ;  but, 
such  as  it  is,  it  is  secured  by  all  the  protections  of 
law.  The  mariner's  claim  for  wages  is  preferred  to 
all  other  liens,  and  is  nailed  to  the  last  plank  of  the 
ship.^ 

*  In  the  recent  case  of  The  Globe  (The  Law  Rep.,  Dec.  No., 
1852),  it  was  held  that  maritime  liens  against  a  vessel,  for  sup- 
plies and  materials  furnished  to  her  master  at  a  foreign  port,  were 
not  of  such  an  abiding  character  that  they  adhered  to  the  vessel, 
and  might  be  enforced  over  all  claims  of  a  like  nature  subsequently 
accruing  in  the  course  of  her  employment.  "  On  the  contrary," 
observed  Judge  Nelson,  "  I  am  satisfied  that  the  true  rule  upon 
the  subject  is,  that,  in  respect  to  maritime  liens  of  this  descrip- 
tion, the  party  first  instituting  legal  proceedings  for  the  purpose 
of  enforcing  his  claim  against  the  vessel  is  entitled  to  satisfaction 
out  of  the  proceeds  of  her  sale.  Upon  any  other  view,  the  vessel 
would  afi'ord  no  reasonable  security  to  the  merchant  in  making 
advances  or  furnishing  the  necessary  supplies;  as,  for  aught  he 
could  know,  the  existing  claims  against  her  might  exceed  her 
value.  It  is  apparent  that,  to  give  to  this  maritime  lien  the 
efficacy  claimed  would  greatly  embarrass  and  obstruct  the  com- 
merce and  navigation  of  the  country.     It  would  deprive  the  master, 


OF     THE     seaman's    REMEDY   FOR    WAGES,      315 

316.  In  the  case  of  The  Thomas  Jefferson/  it  was 
held,  that  the  Admiralty  had  no  original  jurisdiction 

in  distant  ports,  of  the  means  of  meeting  the  exigencies  of  the 
service,  because  the  vessel  would  furnish  no  adequate  security  for 
the  necessary  supplies  or  repairs."  In  the  case  of  The  Triumph 
(decided  by  Judge  Betts,  in  the  District  Court  of  New  York  for 
the  Southern  District,  and  reprinted  in  the  same  number  of  the 
Law  Reporter  which  contains  the  report  of  the  case  of  The  Globe), 
it  was  held  that  the  meaning  and  oificacy  of  a  maritime  lien  is, 
that  it  renders  the  property  liable  to  the  claim  without  a  previous 
judgment  or  decree  of  the  Court,  sequestering  or  condemning  it, 
or  establishing  the  demand,  as  at  common  law,  and  the  action  in 
rem  carries  it  into  effect.  Thus,  the  appropriation  of  the  res  to 
that  end  becomes  absolute  and  exclusive  on  suit  brought,  unless 
superseded  by  some  pledge  or  lien  of  paramount  order;  and  it 
accordingly  results,  from  the  nature  of  the  right  and  the  proceed- 
ings to  enforce  it,  that  the  first  action  which  seizes  the  property  is 
entitled  to  hold  it,  as  against  all  other  claims  of  no  higlier  cha- 
racter. The  lien,  so  termed,  is  in  reality  only  a  privilege  to  arrest 
the  vessel  for  the  debt,  which  of  itself  constitutes  no  incumbrance 
on  the  vessel,  and  becomes  such  only  by  virtue  of  an  actual  attach- 
ment. These  principles,  laid  down  by  Judge  IJetts,  are  quoted 
and  assented  to  by  Judge  Nelson.  It  will  be  perceived  that,  upon 
the  ground  of  these  two  cases,  namely,  that  the  maritime  lien  is 
only  a  privilege  to  arrest  the  vessel  for  the  debt,  it  docs  not  by 
any  means  follow  that  tlic  privileged  creditor  who  first  enforces 
his  privilege  supersedes  all  prior  liens.  On  the  contrary,  he  only 
hold.s  the  property  as  against  claims  of  the  same  grade.  The 
material-man.  having  a  lien  upon  a  vessel,  does  not  supersede  the 
lien  of  a  seaman  fur  his  wages  because  he  first  arrests  the  vessel. 
The  lien  of  a  seaman  stands  first  in  rank,  and  must  be  first  paid. 
The  seaman,  however,  who  first  arrests  the  vessel,  according  to  the 
principle  of  the  foregoing  cases,  will  be  preferred  to  his  comrades 
on  the  same  voyage,  and  liis  claim  will  be  first  satisfied.  This 
doctrine  is  inapplicable  to  the  case  of  bottomry  bonds,  because  tlio 
last  bond,  according  to  the  invariable  practice  of  the  Admiralty, 
takes  precedence  of  all  prior  bonds.  See  The  Iloyal  Saxon,  Wal- 
lace, Jr.'s,  II.  oil. 
'  10  Wheat.  K.  428. 


316  THE    LAW    OF    siiirriNG. 


of  contracts  for  the  hire  of  seamen,  except  in  cases 
where  the  service  was  substantially  performed,  or  to 
be  performed,  upon  the  sea,  or  upon  waters  within 
the  ebb  and  flow  of  the  tide.  The  jurisdiction 
existed,  however,  although  the  commencement  or 
termination  of  the  voyage  might  happen  to  be  at 
some  place  beyond  the  reach  of  the  tide. 

317.  It  is  a  little  more  than  a  quarter  of  a  century 
since  this  decision  was  made.  The  Judge  who  de- 
livered the  opinion  of  the  Court,  and  all  his  brethren 
who  sat  upon  the  bench  at  that  time,  have  passed 
away.  They  were  cotemporary  with  the  Revolu- 
tion. Several  of  them,  and  especially  the  Chief 
Justice,  the  most  eminent  of  them  all,  had  partici- 
pated in  its  stirring  events.  He  in  a  pre-eminent 
degree  was  supposed  to  be  familiar  Avith  the  provi- 
sions of  the  Constitution.  Neither  himself,  nor  his 
colleagues  upon  the  bench,  ever  evinced  any  disposi- 
tion to  unduly  circumscribe  its  powers.  On  the 
contrary,  in  doubtful  cases,  they  inclined  to  the  side 
of  power.  Yet  these  men,  coeval  with  the  Constitu- 
tion, familiar  with  its  history  and  its  framers,  in- 
clined to  a  large  and  liberal  interpretation  of  its 
provisions,  and  acquainted,  if  any  men  could  be 
acquainted,  with  the  limits  assigned  by  the  Consti- 
tution to  the  judicial  department  of  the  government, 
— these  men  never  supposed  that  the  Federal  Courts 
had  Admiralty  jurisdiction  of  causes  arising  beyond 
the  ebb  and  How  of  the  tide.  In  the  case  of  The 
Thomas  Jefferson,  they  solemnly  decided  that  the 
jurisdiction  was  bounded  by  that  limit.  But  that 
case  has  been  overruled ;  and  it  is  now  held  by  the 


OF    THE     seaman's    REMEDY   FOR    WAGES.       317 

Supreme  Court  that  the  Admiralty  and  maritime 
jurisdiction  granted  to  the  Federal  Government  by 
the  Constitution  of  the  United  States  is  not  limited 
to  tide-waters,  but  extends  to  all  j^ublic  navigable 
lakes  and  rivers,  where  commerce  is  carried  on  be- 
tween different  States,  or  Avith  a  foreign  nation.* 
The  opinion  of  the  Court  declaring  this  latter  doc- 
trine was  delivered  by  Mr,  Chief  Justice  Taney. 
His  reasoning  is  bold,  manly,  and  direct.  He  em- 
ploys no  evasions  or  disguises.  He  puts  the  decision 
upon  the  ground  that  the  Act  of  1845,  extending 
the  jurisdiction  of  the  District  Courts  to  certain 
cases  upon  the  lakes  and  navigable  waters  connect- 
ing the  same,  is  constitutional,  because  such  lakes 
and  navigable  waters  are  within  the  scope  of  Admi- 
ralty and  maritime  jurisdiction,  as  known  and  under- 
stood in  the  United  States  when  the  Constitution 
was  adopted.  The  Chief  Justice  supports  this  pro- 
position with  force  and  abihty.  But  he  fails  to 
make  good  his  conclusions.  As  an  argument  show- 
ing the  propriety  and  expediency  of  extending  the 
Admiralty  jurisdiction  of  the  Federal  Courts,  it  is 
satisfactory,  l^ut  because  a  thing  ought  to  be  is  no 
proof  of  its  existence.  The  Chief  Justice  demon- 
Btratcs  that  it  is  highly  expedient  and  necessary 
that  the  jurisdiction  of  the  Admiralty  should  extend 
over  the  interior  waters  of  the  country,  and  therefore 
concludes  that  it  does  extend  over  them.  His  reason- 
ing makes  out  a  case  requiring  an  amendment  of  the 
Constitution.  His  conclusion,  however,  obviates  the 
necessity  of  any  dilatory  process  of  that  nature.     It 


'  The  rn.pcllor  Ocncscc  Cliicf,  12  How.  K.  443.     Sec  Act  of 
February  20,  1845  (5  stat.  at  Large,  726). 


318  THE   LAW   OF   siiirriNG. 

is  the  duty  of  a  lawyer  to  bow  to  the  decisions  of  the 
Courts  with  the  same  submission  and  resignation 
with  which  a  Turk  yields  his  neck  to  the  bowstring. 
In  that  spirit  it  behooves  the  Profession  to  submit 
to  the  doctrine  of  the  Supreme  Court  in  the  case  of 
The  Propeller  Genesee  Chief. 

318.  According  to  the  doctrine  of  this  case,  it  fol- 
lows that  the  Admiralty  has  jurisdiction  of  contracts 
for  services  rendered  in  the  navigation  of  vessels 
upon  the  puljlic  navigable  lakes  and  rivers  of  the 
country,  where  commerce  is  carried  on  between 
different  States,  or  with  a  foreign  nation.  Congress 
has  provided,  however,  that  canal  boats,  navigated 
without  masts  or  steam-power,  shall  not  be  subject 
to  be  libelled  in  any  of  the  Courts  of  the  United 
States  for  the  wages  of  any  person  or  persons  who 
may  be  employed  on  board  thereof,  or  in  navigating 
the  same.^ 

319.  By  the  maritime  law,  the  seamen  have  a  lien 
on  the  freight,  as  well  as  the  vessel,  for  their  wages. 
Their  lien  arises  ex  contractu,  and  takes  precedence 
of  all  other  liens  of  that  nature.  Dr.  Lushington, 
however,  in  the  case  of  The  Mary  Ann,^  expressed 
the  opinion  that  a  bottomry  bond  would  take  prece- 
dence of  wages  earned  antecedently  to  the  bond. 
"  Suppose,"  he  asked,  "  the  wages  sued  for  had  been, 
in  part,  wages  on  the  outward  voyage,  before  the 
bottomry  bond  was  taken ;  then  would  arise  a  ques- 
tion of  no  small  importance,  namely,  whether  these 

*  Act  U.  S.,  July  20;  184G,  sec.  1.  =  9  Jurist,  94. 


OF    THE    seaman's    REMEDY   FOR    WAGES.       319 

wages  would  be  entitled,  as  against  the  ship,  to 
priority  over  the  bottomry  bond  ?  I  apprehend  not. 
Doubtless  wages  earned  subsequently  to  the  bot- 
tomry- bond  Avould  be  entitled  to  priority  against  the 
ship."  The  same  rule  applies  to  the  case  of  salvage, 
when  it  is  of  a  meritorious  kind,  and  it  takes  prece- 
dence, it  seems,  of  the  original  or  antecedent  wages.^ 
Salvage  is  privileged  before  the  original  or  prior 
wages  of  the  ship's  crew,  on  the  ground  that  they 
are  saved  to  them  as  much  as,  or  eadem  ratione  qua, 
the  ship  and  cargo  are  saved  to  their  owners.^ 

320.  The  rule  which  gives  salvage  of  a  meritorious 

*  Sclina,  2  Notes  of  Cases,  18,  cited  in  the  Law  Reporter  for 
iMay,  1853,  p.  5.  The  article  in  this  number  of  the  Law  Reporter, 
"  On  the  Peculiarities  of  Maritime  Liens,"  together  with  a  pre- 
ceding article  upon  the  same  subject,  by  the  same  writer,  will 
repay  a  careful  perusal.  The  Sahira,  7  Jurist,  182.  "In  liens 
ex  contractu,"  observes  the  writer  above  referred  to,  "the  pre- 
ference or  right  of  priority  ostensibly  depends  upon  the  dates  at 
which  the  liens  have  attached.  For  the  rule  by  which  that 
priority  is  determined,  requires  that  the  demand  or  service  for 
which  that  privilege  is  claimed  be  posterior  in  date  to  other  ser- 
vices or  liens.  The  ground  of  this  inversion  of  rule  is  just  and 
obvious.  In  the  hazardous  trade  of  the  sea,  the  services  performed 
at  the  latest  hour  arc  most  efficacious  in  briiigiug  the  vessel  and 
her  freightage  safely  to  their  final  destination.  Each  foregoing 
incumbrancer,  therefore,  is  actually  benefited  by  means  of  the  suc- 
ceeding incumbraiico,  and  the  equity  of  the  Court  of  Admiralty, 
in  adjudicating  cases  of  conflicting  liens  of  this  nature,  takes  that 
as  the  principle  of  its  decisions.  Subject  to  this  comprehensive 
principle,  in  the  first  rank  of  liens  ex  contractu,  arc  wages,  pilotage, 
and  towage.  These  take  precedence  of  all  other  liens  ex  contractu, 
as  being  a  remuneration  for  services  performed  in  bringing  a  vessel 
safely  to  her  haven." 

*  Law  Reporter,  supra. 


320  THE    LAW    OF    siiirriNG. 

kind  precedence  over  prior  wages,  does  not  apply 
with  equal  force  to  a  bottomry  bond.  The  bond,  it 
is  true,  may  enable  the  ship  to  be  repaired  and  pro- 
secute her  voyage ;  but  it  cannot  be  said  that  it  pre- 
serves the  ship  and  cargo  to  the  seamen  as  much  as 
to  the  owners.  Because,  in  most  instances,  if  not  in 
every  instance,  a  ship,  which  can  be  hypothecated 
upon  bottomry,  is  of  sufficient  value  in  its  present 
state  to  satisfy  the  claims  of  the  seamen.  The  bond, 
therefore,  does  not  enure  to  their  benefit.  On  the 
contrary,  if  Courts  of  Admiralty  postpone  their  claim 
for  wages  to  the  bond,  the  bond  may  have  the  efi'ect 
to  supersede  their  lien  altogether,  that  is,  if  the  bond 
should  absorb  the  res.  The  question  has  been  no- 
where directly  determined,  and  is  open  to  discus- 
sion.^ 

321.  While  the  lien  for  wages,  with  the  exceptions 
which  we  have  mentioned,  takes  precedence  of  all 
other  liens  arising  ex  contractu,  a  different  rule  applies 
to  liens  arising  ex  delicto.  In  cases  of  collision,  if  the 
guilty  sliip  is  insufficient  to  meet  all  demands,  the 
lien  of  damage  must  be  first  satisfied.  The  principle 
upon  which  the  Courts  proceed  in  these  cases,  is 
based  upon  sound  policy.  The  libellant,  in  a  cause 
of  damage,  has  suffered  a  wrong  from  the  negligence, 
or  delict  inn,  of  the  master  and  crew  of  the  vessel  in 
fault.     By  giving  him  a  preference  of  payment  over 

*  With  respect  to  anj'  accretion  in  the  value  of  the  vessel  by 
means  of  the  repairs,  the  bottomry  holder  ought  not  to  bo  post- 
poned to  the  seamen's  claim  for  wages.  They  are  in  justice  only 
entitled  to  the  value  of  the  vessel  before  the  repairs  were  com- 
menced.    Sec  The  Aline,  1  W.  Rob.  119. 


OF    THE     SEAMAX'S    REMEDY   FOR    WAGES.       321 

those  who  have  done  the  injury,  it  will  insure,  or 
tend  to  insure,  care  and  circumspection  in  the 
future/ 

322.  We  have  observed  that  the  seamen  have  a 
lien  upon  the  freight  as  well  as  the  ship.  But  it  is 
a  principle  of  Admiralty  practice,  that  when  there 
are  two  creditors,  the  one  having  security  on  two 
species  of  property,  and  the  other  security  upon  one 
only,  the  Court  will  compel  the  creditor  who  has  the 
double  security  so  to  resort  to  that  as  will  enable  the 
other,  who  has  only  a  single  security,  to  be  paid.^ 

323.  It  is  well  settled  in  this  country,  that  the 
master  has  no  remedy  for  his  wages  against  the  ves- 
sel.^ The  rule,  however,  is  an  arbitrary  one,  and  no 
satisfactory  reason  is  assigned  for  placing  him  in  a 
less  favorable  position  than  that  occupied  by  the 
seamen.  Both  for  his  wages  and  his  disbursements, 
he  is  entitled,  in  reason,  to  a  lien  upon  the  ship. 
The  foreign  ordinances,  so  far  as  I  can  discover,  make 
no  discrimination  against  him.     On  the  contrary,  the 

•  The  Aline,  1  W.  Hob.  119 ;  Gazelle,  2  W.  Rob.  281 ;  Benares, 
cited  in  Law.  Hep.,  supra;  Bold  Bucelcucli,  o  W.  Hob.  229.  In 
the  case  of  The  Aline,  svjira,  Dr.  Lusliington  held,  that  when  a 
vessel,  run  down  by  another  vessel,  had  been  repaired  by  means 
of  a  bottomry  bond,  the  lien  of  damage  did  not  extend  to  tlic  sub- 
sequent repairs.  The  creditor  was  Liititlcd  to  the  value  of  the 
vessel  before  the  repairs  were  coinnienccd,  and  to  that  portion  of 
the  repairs  which  was  done  after  the  arrest  took  place. 

'  The  .Mary  Ann,  9  Jurist,  44. 

"The  Brig  Spartan,  Ware's  R.  101;  Steamboat  Orleans  v. 
Phrxjnix,  11  Peters'  R.  184;  The  Ciaiid  Turk,  1  I'aiiic's  R.  7.^  ; 
The  New  Jersey,  1  I'cters'  Ad.  R.  228;  2  Id.  897;  S.  C.  1  Dall. 
R.  49 ;  The  Ship  Packet,  '.i  Mason's  R.  255. 

21 


322  THE    LAW     OF     SUIT  TING. 

French  codes  allow  the  master  the  same  privilege 
against  the  ship  for  his  wages,  and  in  case  of  mis- 
fortune, against  the  savings  from  the  wreck,  as  the 
seamen.'  This  provision  of  the  French  law  has  its 
basis  in  justice  and  sound  reason.  It  is  to  be  hoped 
that  the  principle  of  it  will  be  engrafted  into  our 
American  law. 

324.  Judge  Ware,  in  the  case  of  The  Brig  Spar- 
tan,"*  took  one  step  towards  this  desirable  result.  In 
that  case,  he  sustained  a  hbel,  containing  an  allegar 
tion  by  the  master,  claiming  a  lien  on  the  freight 
for  his  wages.  There  is  no  question  of  the  master's 
right  to  sue  in  personam,  in  the  Admiralty,  for  his 
wages,  as  well  as  for  disbursements  and  advances, 
made  by  him  on  account  of  the  ship.^  Payments, 
too,  have  been  allowed  to  masters  for  advances  and 
necessary  disbursements  abroad,  out  of  remnants  and 
surplusages  arising  from  the  proceeds  of  a  sale  oi  the 
ship  in  their  hands,  and  this  upon  the  ground  that 
they  partook  of  the  nature  of  liens.'' 

325.  The  lien  of  seamen,  for  the  whole  compen- 


*  Ord.  de  la  Marine,  L.  3,  tit.  4,  arts.  8  and  21 ;  Code  de  Com- 
merce, 352.     Sec,  also,  7  &  8  Vict.  c.  112,  s.  16. 

=  Sujyra.  See,  also,  Goodrich  v.  Lord,  10  Mass.  487 ;  Lane  v. 
Pcnniraan,  Id.  92  ;  White  v.  Baring,  4  Esp.  N.  P.  R.  22 ;  Roccus, 
n.  31. 

3  The  Ship  Packet,  3  Mason's  R.  255 ;  The  George,  1  Sum.  151 ; 
Hammond  v.  Essex  Fire  and  M.  Ins.  Co.,  4  Mason,  106;  The 
Brig  Spartan,  supra;  Shcppard  v.  Taylor,  5  Peters'  R.  675,  711; 
Fisher  v.  Willing,  8  S.  &  Rawle,  118;  The  Steamboat  Orleans, 
11  Peters,  175 ;  Case  v.  Woolley,  6  Dana,  22 ;  2  Brown.  Civ.  and 
Adm.  Law,  95 ;  1  Dall.  98. 

*  The  Ship  New  Jersey,  1  Peters'  Ad.  R.  223. 


OF    THE     seaman's    REMEDY   FOR    TTAGES.       323 

sation  due  to  them,  attaches  to  the  ship,  and  to  what- 
ever is  substituted  for  it.  Hence  where  a  ship  was 
captured,  and  afterwards  restitution  in  value  was 
made,  it  was  held,  that  the  lien  reattached  to  the 
money  substituted  for  it.  This  doctrine  is  founded 
upon  the  principle,  that  the  owner  and  the  lien- 
holder,  whose  claims  have  been  wrongfully  dis- 
placed, may  follow  the  proceeds  wherever  they  can 
distinctly  trace  them.^  The  seamen  being  entitled 
to  enforce  their  claim  against  the  goods  taken  on 
freight,  may  likewise  proceed  against  the  goods  of 
the  owner,  or  charterer  of  the  ship.  Tlie  nature  of 
their  service  is  the  same,  and  their  lien  adheres  to 
the  goods,  whoever  may  be  the  owner.  The  mer- 
chandise is  hypothecated  to  the  wages  to  the  amount 
of  freight  due  upon  it,  and  the  merchant  is  not  en- 
titled to  receive  his  goods  until  the  lien  is  dis- 
charged.^    The  lien  of  the  mariner  is  not  upon  the 

'  Sheppard  v.  Taylor,  supra;  Vandevcr  v.  Tilghman,  Crabbe's 
R.  G6. 

2  Poland  V.  The  Freight  and  Cargo  of  Brig  Spartan,  Ware's  R. 
14G ;  Skolfiold  V.  Potter,  Davics'  R.  392 ;  Brown  v.  Lull,  2  Sum. 
443.  It  was  said  in  the  case  of  Sheppard  v.  Taylor,  sujira,  that 
"  the  cargo  is  not  in  any  manner  hypothecated  or  subjected  to  the 
claim  of  wages."  This  was  a  mere  i/ictum,  and  the  point  was  not 
necessarily  involved  in  the  cause.  (Seethe  next  note.)  In  Shep- 
pard V.  Taylor,  the  owner  of  the  ship  was  also  owner  of  the  cargo. 
There  had  been  an  award  allowing  the  assignees  freight,  as  a  dis- 
tinct item;  and  the  owners  were  insolvent.  If  the  master  were 
living,  he  would  have,  the  Court  said,  a  direct  lien  upon  the 
freight  for  his  disbursements,  and  liability  for  wages;  and  through 
him  the  seamen  would  have  the  means  of  asscrtini:  a  claim  on  it. 
"We  can  perceive  no  principle  then,"  observed  Judge  Story,  de- 
livering the  opinion  of  the  Court,  "  why,  in  the  present  case,  the 
seamen   may  not  justly  assert  a  claim  on  the  freight;  if  the  pro- 


324  THE    LAW    OF    SIIirPING. 

cargo  as  cargo,  his  lien  is  ni)on  the  ship  and  on  the 
freight  as  appurtenant  to  the  shi[) ;  and  so  far  as  the 
cargo  is  subject  to  freight,  he  may  attach  it  as  a  se- 
curity for  the  freight  that  may  be  due/ 

326.  This  hen  of  the  seamen  takes  precedence  of 
bottomry  bonds  and  all  other  claims,  whether  the 
entirety  of  the  fund  out  of  which  they  are  to  be 
paid,  remains,  or  a  part  of  it  is  lost  by  accident  or 
otherwise.^  It  may  be  enforced  against  the  freight 
by  seizing  it  in  the  hands  of  the  master,  or  in  the 
hands  of  the  merchant  before  it  is  paid.^     Those 

ceeds  of  the  ship  are  exhausted,  without  satisfying  the  amount  of 
their  wages.  No  authority  has  been  produced  against  it;  and  we 
think  it  justly  deducible  from  the  general  doctrines  of  the  mari- 
time law  on  this  subject."     See  Pitman  v.  Hooper,  3  Sum.  11.  50. 

1  The  Lady  Durham,  3  Hagg.  Ad.  R.  200 ;  Conkling's  Admi- 
ralty, pp.  75,  76 ;  Skolfield  v.  Potter,  Davies  R.  392.  "  It  may 
be  true,"  said  his  honor  Judge  Ware,  in  this  case,  "  that  the 
cargo  is  not  directly,  but  it  certainly  is  indirectly  bound  for  the 
wages.  For  it  is  a  first  principle  of  the  maritime  law  that  the 
cargo  is  bound  to  the  vessel  for  the  freight,  and  another  equally 
ancient  and  undoubted,  that  the  freight  is  pledged  for  the  wages. 
Indirectly,  therefore,  to  the  amount  of  the  freight  due  upon  it,  the 
cargo  is  bound  for  the  wages.  The  master  is  not  obliged  to  de- 
liver it  until  the  freight  is  paid  or  secured,  and  if  not  paid,  he  may 
sell  so  much  as  is  ncccssar}'  to  pay  the  freight.  The  seamen  may, 
therefore,  indirectly,  through  the  master,  proceed  against  the  cargo 
itself,  for  their  wages,  to  the  amount  of  the  freight  due.  When  the 
owners  of  the  ship  are  the  owners  of  the  cargo,  the  seamen's  claim 
on  the  freight  can  be  enforced  in  no  other  manner  but  through 
the  merchandise  j  and  1  see  no  ohjection  in  principle  or  conve- 
nience, to  alloicinf/  the  seamen  to  do  that  directly  in  their  oicn 
name,  which  they  may  do  indirectly  throwjh  that  of  the  viaster." 

"  Pitman  v.  Hooper,  3  Sum.  II.  50  ;  Skolfield  v.  Potter,  Davies' 
R.  392  ;  ante,  sees.  323,  324. 

3  Poland  V.  The  Freight  and  Cargo  of  the  Brig  Spartan,  Ware's 


OF    THE    seaman's    REMEDY     FOR    TVAGES.     325 

who  impugn  the  validity  of  the  general  rule  as  to 
the  extent  and  j)riority  of  a  seamen's  lien,  are  bound 
to  show  that  the  exception  upon  which  they  rely,  is 
one  well  founded.  There  is  no  doubt  that  as  against 
the  owners  of  the  ship  themselves,  the  mariners 
have  a  perfect  right  to  be  paid  out  of  the  ship  and 
freight,  even  if  the  wages  were  earned  in  two  or  three 
preceding  voyages.  But  whether  the}"  would  have 
a  similar  right  as  against  the  owners  of  the  cargo,  is 
not  so  clear.     "We  mean  for  the  antecedent  voyages. 

327.  It  seemed  to  be  the  opinion  of  Dr.  Lushington, 
in  the  recent  case  of  The  Louisa  Bertha,'  that  they 

R.  1.34.  It  was  held,  in  the  case  of  Holmes  v.  Bigelow,  3  De- 
saus.  11.  497,  that  seamen  libelling  and  selling  the  ship,  have  no 
right  to  resort  to  the  cargo  for  payment  of  the  balance  of  their 
wages.  They  must  sue  the  captain  or  owners  at  law.  This  de- 
cision proceeded  upon  the  wholly  erroneous  notion,  that  the  seamen 
had  only  a  lien  upon  the  ship  for  their  wages,  and  having  ex- 
hausted that,  they  had  no  other  recourse  but  their  remedy  at  law, 
viz.,  an  action  against  the  captain  or  owners.  Whereas,  as  we 
have  seen  in  the  text,  the  cargo  is  subject  to  the  lien  of  the  sea- 
men, to  the  extent  of  the  unpaid  freight,  and  can  be  proceeded 
against  by  process  in  rem. 

*  1  Eng.  Law.  k  Ivj.  11.  669.  This  was  a  suit  for  wages,  pro- 
moted by  the  mate  and  seven  seamen  of  the  Prussian  ship  Louisa 
Bertha,  against  the  ship  and  freight,  in. which  an  appearance  was 
given  by  the  owners  of  the  cargo,  who  prayed  to  be  heard  on 
their  petition,  in  objection  to  the  payment  out  of  the  proceeds 
of  the  sale  of  tlie  .ship  and  freight,  of  a  portion  of  the  wages  sche- 
duled, until  after  a  bottomry  bond  upon  the  said  ship  pronounced 
for  in  this  Court,  and  the  costs  of  establishing  the  same,  should 
have  been  satisfied  out  of  the  ."aid  proceeds  and  freight.  The 
act  on  petition  alleged,  that  the  ship  .sailed  from  I\Iemel,  in 
March,  1848,  with  a  cargo,  which  Aw.  discharged  upon  paymont  of 
freight  at  her  port  of  destination;  that  in  the  years  iSlS  and 
1849,  the    ship   made    other   voyages,   and    carried   considerable 


32G  THE    LAW    OF    SlTirPING. 

would  have  no  such  right.  In  that  case,  the  wages 
were  earned,  under  a  continuous  contract,  binding 
the  mariners  to  remain  on  board  the  ship,  whatever 

freight,  and  in  November,  1849,  sailed  from  Alexandria,  bound  to 
a  port  in  Great  Britain  and  Ireland,  or  to  a  port  between  Havre 
and  Hamburgh,  calling  at  Cork  or  Falmouth  for  orders,  in  the 
course  of  which  voyage,  the  master,  for  securing  the  re-payment 
of  a  certain  sum  of  money,  with  the  maritime  premium  thci'con, 
executed  the  said  bottomry  bond,  binding  the  ship,  cargo,  and 
freight ;  that  the  ship  having  arrived  in  England,  the  holder  of 
the  bond  arrested  the  ship,  cargo,  and  freight ;  that  bail  was 
given  on  behalf  of  the  owners  of  the  cargo,  so  far  as  regarded 
the  cargo  and  freight,  but  no  appearance  being  given  for  the  ship, 
she  was  sold  by  authority  of  the  Court,  and  the  proceeds,  697^. 
5s.  8(/.,  subject  to  deductions  to  the  extent  of  30?.  or  401., 
brought  into  the  registry  ;  that  the  freight  due  for  transportation 
of  the  said  cargo,  was  303/.  8s.  del.,  but  that  the  said  sums  of 
697/.  5s.  8f/.,  and  303/.  8s.  9c?.,  were  not  suflBcicnt  to  pay  the 
sum  of  1002/.  8s.  11(7.,  secured  and  due  upon  the  said  bond,  a 
portion  of  which,  and  all  expenses  incurred  in  recovering  the 
same,  would  have  to  be  paid  by  the  owners  of  the  cargo.  The 
act  then  alleged,  that  the  greater  part  of  the  wages  sued  for  and 
set  forth  in  the  schedule,  was  earned  in  voj'ages  preceding  the 
voyage  in  which  the  said  bond  was  granted,  and  if  well  earned, 
might  be  recovered  against  the  master  and  against  the  owners  of 
the  ship;  whereas  if  the  whole  of  such  wages  be  decreed  to  be 
paid  out  of  the  proceeds  of  the  ship  and  freight,  a  corresponding 
portion  of  the  said  bond  would  have  to  be  paid  by  the  owners  of 
the  cargo,  who  would  have  no  means,  at  law  or  in  equity,  of  re- 
covering the  same,  or  any  portion  thereof.  The  owners  of  the 
cargo  contended  that  they  ought  to  be  relieved  from  that  burden, 
and  the  seamen,  instead  of  being  paid  from  the  ship  and  freight, 
should  be  left  to  take  their  remedy  against  their  masters  or  owners 
in  a  foreign  country;  except,  indeed,  that  they  admitted  that  they 
could  not  successfully  resist  the  payment  of  wages  from  Alexan- 
dria to  England,  the  voyage  in  which  the  bottomry  bond  was  given. 
Dr.  Lushington,  upon  the  ground  that  the  voyage  was  a  continu- 
ous one,  upheld  the  lien  of  the  seamen,  or  rather,  overruled  the 
prayer  of  the  owners  of  the  cargo. 


OF    THE    seaman's    REMEDY    FOR    TVAGES.     327 

might  be  the  number  of  voyages,  until  the  return  of 
the  vessel  to  the  port  of  shipment.  "  I  consider,"  said 
Dr.  Lusliington,  "  that  the  seamen,  in  pursuance  of 
the  contract,  were  not  at  liberty  to  quit  the  ship,  and 
that  they  have  a  claim  as  a  lien  against  the  ship  and 
freight.  It  is  said  that  great  injustice  will  be  thus 
done  to  the  owners  of  the  cargo.  I  am  not  prepared 
to  say  that  it  is  so,  because,  when  they  shipped  the 
cargo,  they  might  have  ascertained  whether  the  ship 
had  been  out  a  considerable  time,  and  whether  she 
had  on  board  a  crew  which  had  been  earning  wages. 
It  appears  to  me,  that  under  these  circumstances,  I 
should  be  doing  injustice  to  the  seamen  if  I  were  to 
depart  from  the  general  rule,  that  wages  are  a  lien 
on  the  ship.  I  do  not  say,  that  that  is  a  rule  never 
to  be  broken  down.  I  shall  not  depart  from  it  in 
this  case." 

328.  It  is  a  well-settled  doctrine  of  the  maritime 
law,  that  seamen  have  a  triple  security  for  their 
wages,  the  vessel,  the  owner,  and  the  master.  And 
the  owner,  idthough  his  name  may  not  be  stated  in 
the  shipping  articles,  is  nevertheless  liable  for  the 
wages  of  the  seamen.  The  law  will  not  presume, 
because  the  name  of  the  owner  may  not  be  set  out 
as  a  party  to  the  contract,  tliat  the  mariner  has, 
therefore,  consented  to  give  up  his  liability  and 
abandon  the  rights  conferred  on  liiiu  by  the  law. 
The  owner  is  bound,  not  by  any  direct  or  express 
covenant  or  ])romise  in  tlio  written  contract,  l)ut  by 
the  decree  of  the  law,  named  or  not  named,  declared 
or  concealed.' 


13roudo  V.  Haven,  1  Gilpin's  R.  593. 


328  THE   LAW  OF   siiirriNG. 

329.  And  the  sale  and  transfer  of  a  vessel  and 
freight,  does  not  discharge  the  owner  from  his  re- 
sponsibiUty  to  the  mariner,  and  pass  him  over  to 
whoever  may  be  the  owner  when  the  wages  are 
demanded.  A  party  to  a  contract  cannot  withdraw 
himself  from  it  at  his  i)leasure,  and  put  a  substitute 
in  his  place  to  fuHil  his  engagements.'  The  owners 
of  the  vessel  are  liable  for  the  wages  of  a  seaman, 
employed  by  the  master,  notwithstanding  he  may 
have  had  a  complement  of  men  without  him.  The 
master  of  a  ship  has  authority  to  employ  mariners, 

*  Brondc  v.  Haven,  1  Gilpin's  K.  593.  The  opinion  of  Judge 
Ilopkinson,  in  this  case,  upon  the  point  stated  in  the  text,  is,  we 
think,  conclusive.  He  says,  ''We  have  here  a  clear,  unquestioned 
contract,  made  by  the  master  of  the  vessel,  the  agent  of  her  owner, 
binding  personally  upon  both  ;  the  owner  being  the  principal  party 
in  interest,  and  responsible  to  the  seamen  for  all  his  rights  under 
and  by  the  contract.  Can  a  party  to  this  contract  change  and 
perhaps  destroy  the  security  on  which  the  other  party  relied,  turn 
him  over  to  a  stranger  without  his  consent,  and  leave  hiin  to  learn 
it  for  the  first  time,  after  his  services  have  been  rendered,  and  his 
engagements  performed  on  the  faith  of  the  contract  as  he  made  it? 
He  proceeded  on  the  voyage  on  the  confidence  he  gave  to  the  contract, 
and  to  the  parties  who  were  responsible  to  him  for  it.  After  months 
or  years  of  hard  and  faithful  service,  the  vessel  is  wrecked,  so  that 
he  has  no  fund  then  for  the  payment  of  his  wages;  the  master,  who 
in  truth,  is  seldom  much  considered  as  a  security,  is  ruined  by  the 
disaster ;  and  when  the  seaman  comes  home  to  the  place  where  his 
contract  was  made,  to  the  owner  of  the  vessel,  who  was  his  owner 
and  his  party,  he  is  told  by  him  that  he  has  sold  the  vessel  to  a 
beggar  or  a  merchant  in  Russia ;  that  all  his  engagements  and  re- 
sponsibilities went  with  the  ship  and  her  freight ;  and  that  the 
mariner  must  follow  them  for  his  wages.  There  is  something  to 
my  notions  of  justice  so  shocking  in  such  a  reply  to  such  a  demand, 
that,  unless  I  am  bound  by  some  authority  I  may  not  resist,  I  can 
never  yield  to  it."  Vide,  Aspinwall  v.  Bartlett,  8  Mass.  R.  483 ; 
Brooks  V.  Dorr,  2  Mass.  R.  39. 


OF    THE     seaman's    REMEDY    FOR    TTAGES.     329 

and  the  person  emiiloyed  is  not  bound  to  inquire 
whether  he  has  ah^eady  a  full  crew/ 

330.  When  it  is  said  that  seamen  have  a  three- 
fold remedy  for  their  wages,  namely,  against  the 
ship,  the  owners,  and  the  master,  it  must  be  under- 
stood that  the  master  is  chargeable  onlj-  on  his 
special  contract  in  hiring  the  seamen.  The  action 
against  him  arises  solely  from  the  obligation  which 
he  contracts  by  such  hiring ;  and  the  action  against 
the  owners  arises  from  the  implied  contract  which 
they  are  supposed  to  have  made  through  their  agent, 
the  master.  It  was  said,  in  Wysham  v.  Bosser,^ 
that  the  only  case  in  which  it  can  be  supposed  that 
a  new  or  substituted  master  assumes  the  contract,  is, 
when  he  takes  upon  himself  the  original  voyage. 
To  carry  his  responsibility  further,  the  Court  thought 
would  be  unprecedented,  and  of  dangerous  conse- 
quence. 

331.  The  substituted  master  may  not,  and  pro- 
bably does  not  assume  in  terms  the  original  contract; 
but  would  not  the  law  imply,  and  justly  imply,  that 
by  the  very  act  of  assuming  the  command  of  the 
vessel,  he  thereby  assumes  the  contract  ?  The  owner 
may  change  the  master  whenever  he  pleases,  and  at 
any  stage  of  the  voyage,  and  that  is  not  a  dissolution 

»  Luscom  V.  Osgood,  District  Ct.  of  the  U.  S.  for  Mass.,  7  Law 
Rop.,  i;{2.  Vide,  the  Act  of  Congress  of  1700,  ch.  20,  s.  0,  and 
the  Act  of  1813,  ch.  2,  expressly  providing  that  seamen,  those 
engaged  in  flie  bank  and  cod  fi.sherics,  as  well  as  those  cniplnycd 
in  the  merchant  eervicc,  may  proceed  against  the  ship  in  (he  Ad- 
miralty. 

'■'  11  John.  R.  72  ;  Mays  v.  Harding,  6  Ma-ss.  R.  iJOO. 


330  THE    LAW    OF    SHIPPING. 

of  the  sliipping  articles  as  to  the  seamen.  It  is  im- 
portant to  the  seamen  that  the  captain  be  known  to 
them,  anil  one  on  whom  they  may  depend  for  their 
wages.  But  if  the  master  may  be  changed  at  any 
moment,  in  the  progress  of  the  voyage,  as  he  may 
be,  and  at  a  time  when  the  wages  of  the  seamen  may 
not  be  due,  and  when  of  course  they  cannot  com- 
mence proceedings  against  the  original  master  upon 
the  original  contract  for  the  services  already  ren- 
dered,— if  they  have  no  claim  upon  the  substituted 
master  for  those  services,  then  they  are  practically 
deprived  of  one  of  the  remedies  given  them  by  the 
law. 

332.  The  substituted  master  receives  the  freight, 
the  very  fund  upon  which  the  seamen  rely,  and 
which  the  maritime  law  regards  as  specially  en- 
titling them  to  payment.  "  If,  then,"  inquires  Mr. 
Curtis,  "a  substituted  master  had  earned  freight, 
and  had  actually  received  it,  or  might  have  received 
it,  to  be  applied  to  the  claims  of  the  seamen,  would 
he  not  be  deemed  to  have  assumed  the  whole  of  the 
original  contract,  so  as  to  be  personally  liable  for  the 
wages  earned  before,  as  well  as  those  earned  after 
his  accession  to  the  office  ?  It  is  certain  that  the 
maritime  law  contemplates  freight  as  the  trust  fund 
for  the  payment  of  wages,  and  some  of  the  older  au- 
thorities direct  the  master  positively  in  regard  to  the 
payment  of  their  claims  out  of  it.  If  he  had  actu- 
ally received  the  freight,  and  neglected  their  claims, 
he  would  at  least  be  liable  as  the  holder  of  a  fund 
out  of  which  they  are  entitled  to  be  paid  by  priority. 
Whether  the  opportunity  to  have  received  it  would 


OF    THE     seaman's    REMEDY    FOR    WAGES.      331 


raise  an  implied  contract  with  the  seamen  for  the 
whole,  is  a  question  deserving  of  consideration. 


"1 


333.  In  the  case  of  Bray  v.  Ship  Atlanta,^  Judge 
Bee  seemed  to  regard  it  as  a  settled  point,  that  the 
new  master  would  be  liable  upon  the  original  con- 
tract. "  As  to  the  change  of  captain,"  he  observed, 
"I  do  not  think  it  justifies  the  seamen  in  leaving 
a  ship,  after  they  have  signed  articles  to  proceed  on 
a  definite  voyage ;  for,  although  the  contract  is  made 
with  the  captain,  yet  it  is  chiefly  on  the  credit  of  the 
vessel  that  they  depend  for  their  wages.  And  if  the 
vessel  be  lost,  it  cannot  be  said  that  they  would  have 
a  claim  on  the  captain  personally.  The  ccqHai?!,  may 
die,  or  be  dismissed  hij  the  owners,  after  articles  signed  ; 
hid  this  woidd  hy  no  means  discharge  the  seamen.  The 
vessel,  the  owners,  and  the  new  captain  tcould  be  liable 
to  their  claim  for  wages,  and  as  contracts  are  mutual, 
tJiey  are  also  bound.'' 

334.  The  question  has  arisen  in  the  Courts  of  this 
country,  whether  upon  an  abandonment  by  the 
owners  to  the  assurers,  the  remedy  of  the  mariners 
for  their  wages  lies  against  the  underwriters,  or 
against  the  former  owners.  The  decisions  have  gone 
upon  the  principle,  that  the  transfer  of  property  in 
freight  from  owners  to  underwriters  does  not  aflect 
the  contract  between  the  sliip-owners  and  freighters, 
nor  does  the  transfer  of  the  ship  (the  freight  follows 
as  an  incident  tlio  property  in  tlie  sliip,  and,  thore- 

'  Merchant  Seamen,  p.  328. 

« lice's  11.  48.     Sec,  also,  U.  S.  v.  Hugglcs,  5  Mason's  11.  192. 


332  TUE   LAW  OF   siiirriNG. 

fore,  as  between  the  respective  underwriters  on  ship 
and  freight,  an  al)and()nnient  of  the  ship  carries  the 
freight  along  with  it)  between  the  same  parties, 
aftect  the  mariners'  contract.  The  underwriters, 
upon  a  vaUd  abandonment,  do  not,  in  consequence 
of  that  act,  become  personally  liable  to  the  seamen 
for  their  wages.  They  have  a  right  to  look  to  the 
original  owners,  with  whom  they  contracted,  and 
whose  responsibility  they  know.^  It  was  held,  how- 
ever, in  the  case  of  M'Bride  v.  Mar.  Ins.  Co./  that 
if  the  underwriter  accepts  the  abandonment,  the 
subsequent  wages  will  be  chargeable  to  him,  as 
owner,  and  not  as  insurer.  This  doctrine  seems  in 
accordance  with  the  general  current  of  decisions,  and 
was  adopted  by  Judge  Story  in  the  case  of  Ham- 
mond V.  Essex  Fire  and  Marine  Ins.  Co.^ 

335.  It  is  not  only  for  wages  earned  in  the  course 
of  a  voyage  that  seamen  may  sue  in  the  Admiralty, 
but  also  for  wages  earned  in  rigging  and  fitting  out 
a  ship  for  a  voyage,  on  which  they  have  engaged  to 
proceed,  but  wdiich  the  owners  abandon.  Thus,  in 
the  case  of  Parry  v.  The  Peggy,^  the  promovents  had 
agreed  for  monthly  wages,  for  a  voyage  to  the  West 

1  Brooks  V.  Dorr,  2  Mass.  R.  39. 

=  7  John  R.  431.  Vide,  also,  Hammond  v.  Essex  Fire  and  M. 
Ins.  Co.,  4  Mason's  R.  196. 

3   Ibid. 

•*  2  Brown.  Civ.  and  Adm.  Law,  533.  In  the  case  of  Ilynes  v. 
Kirkman,  4  Louis.  R.  17,  it  was  held,  that  when  the  master  of  a 
steamboat  is  employed  by  the  year,  and  is  compelled  before  the 
expiration  of  the  year  to  abandon  the  boat,  in  consequence  of  the 
illegal  conduct  of  one  of  the  owners,  he  is  entitled  to  full  wages, 
and  may  claim  them  from  all  or  either  of  the  owners. 


OF    THE     seaman's    REMEDY    FOR    "^AGES.     333 

Indies.  They  worked  on  board  the  ship  for  some 
days  in  the  harbor  of  Dublin ;  afterwards  Mr.  Ma- 
guire,  the  owner  of  the  ship,  having  changed  his 
mind,  determined  to  alter  the  voyage,  and  to  post- 
pone the  sailing  of  the  ship,  whereupon  the  seamen 
were  dismissed  without  their  wages,  who  now  libelled 
against  the  ship.  The  surrogate  of  the  Admiralty 
decreed  for  the  seamen,  on  the  reason  of  the  thinir 
and  the  authority  of  Mills  v.  Osmond.^ 


07 


33 G.  It  was  held  by  Dr.  Lushington,  in  the  case 
of  The  City  of  London,^  that  a  mariner  discharged  ■ 
from  a  vessel  after  the  articles  had  been  signed,  but 
before  the  commencement  of  the  voyage,  was  entitled 
to  proceed  in  Admiralty  in  a  suit  for  wages,  the 
voyage  for  which  he  was  engaged  having  been  pro- 
secuted, lie  adopted  in  this  case  as  the  measure  of 
damages  the  whole  wages  of  the  voyage,  deducting 
therelrom  his  earnings  in  other  ships  in  the  inter- 
mediate time.  But  he  said  he  was  disposed  to  ac- 
cede to  the  position,  tliat  if  a  seaman  is  engaged  on 
board  a  vessel,  and  the  owners  think  fit  to  abandon 
the  voyage,  for  which  such  seaman  has  been  engaged, 
he  would  not  be  entitled  to  sue  in  Admiralty,  but 
must  seek  his  remedy  at  common  law  by  an  action 
on  the  case.  In  such  a  case,  he  said  there  would  be 
nothing  to  show  the  real  amount  of  loss  sustained. 
The  question  would  strictly  be  a  question  of  quan- 
tum mrrnit,  and  if  a  Court  of  Admiralty  was  to 
take  upon  itself  to  adjudicate  upon  the  quantum 
of  damage  sustained,  it  would  be  iisni-i)iu^-  the  fiinc- 


«  2  Shower,  p.  238 ;  Abbott  on  Shipping,  784. 
"  1  W.  Hob.  K.  88. 


334  THE    LAW    OF    SHIPPING. 

tions  of  a  jurv,  to  whose  consideration  the  point  in 
question  is  more  pecuHarly  rclerable.  Why  the 
Courts  of  Admiralty  are  incapacitated  to  determine 
a  question  of  qiianUun  meruit,  when  the  contract  is 
maritime  in  its  nature,  is  not  readily  perceived.  I 
am  not  aware  that  the  point  has  directly  arisen  in 
this  country,  but  our  Courts  of  Admiralty  do  not 
hesitate  to  exercise  the  functions  of  juries  in  mari- 
time cases. 

337.  The  Admiralty  and  maritime  jurisdiction  of 
the  Federal  Courts,  extending,  according  to  the  doc- 
trine of  The  Propeller  Genesee  Chief,'  to  all  the 
public  navigable  lakes  and  rivers  of  the  country, 
where  commerce  is  carried  on  between  different 
States,  or  with  a  foreign  nation,  it  remains  to  be  ob- 
served, that  although  the  place  where  the  services 
were  performed  may  be  within  such  jurisdiction, 
another  element  is  essential  to  enable  the  party  to 
sue  there.  The  services  must  have  been  maritime 
services,  that  is,  relating  to  the  business  of  commerce 
and  navigation.  If  the  vessel  in  which  the  wages 
were  earned  was  occupied  in  the  business  of  trade 
and  commerce,  in  a  liberal  and  fair  meaning  of  the 
terms,  in  which  is  not  included  the  petty  trallic  of 
market  or  ferry  boats,  and  other  services  of  the  same 
description,  then  the  mariners  may  sue  in  the  Ad- 
miralty.^ 

338.  Where  the  voyage  has  been  performed,  and 
the  wages  of  the  seamen  have  been  paid  them  up  to 

'  12  How.  R.  443. 

"  The  Farmer,  1  Gilpin's  R.  532 ;  Smith  v.  The  Pekin,  Id.  203. 


OF    THE    SEAMAX'S     REMEDY    FOR    TTAGES.     335 

its  termination,  they  cannot  sue  in  tlie  Admiralty 
for  services  rendered  on  board  the  vessel  whilst 
moored  at  the  wharf.  Those  services  are  performed 
on  a  contract,  which  is  neither  made  at  sea,  nor  for 
a  service  to  be  performed  at  sea.  The  services  have 
no  agency  in  bringing  her  into  port ;  she  is  not  earn- 
ing freight.'  No  lien  exists  in  the  Admiralty  for 
services  performed  by  a  stevedore  in  loading  and 
storing  the  ship's  cargo.  Stevedores  are  usually  em- 
ployed by  the  owner,  consignee,  or  master,  on  their 
personal  credit.  The  service  performed  by  them  is 
in  no  sense  a  maritime  service,  being  completed  be- 
fore the  voyage  is  begun  or  after  it  is  ended.  They 
are,  therefore,  no  more  entitled  to  a  lien  on  the  ves- 
sel, than  the  draymen  and  other  laborers  who  per- 
form services  in  loading  and  discharging  vessels.^ 

339.  It  was  held  by  Lord  Stowell  (then  Sir 
Wilham  Scott)  in  the  case  of  The  Lord  Iloljart,^  that 
a  post-oflice  packet  may  be  arrested  in  a  suit  for 
mariner's  wages.  He  said,  however,  that  a  proceed- 
ing of  that  sort  should  not  be  resorted  to  without 
giving  due  notice  to  the  officers  of  the  Post-office,  and 
for  the  very  obvious  reason,  that  great  inconvenience 
must  arise  from  the  detention  of  vessels  enffaixed  in 
a  public  service  of  that  description.  Upon  being 
informed  by  the  registrar,  that  notice  had  been  given 


'  I'liillips  V.  Scattcrgood,  Id.  3, 

a  M'Dcniiott  V.  The  S.  G.  Owens,  Wallace,  Jr.'s,  R.  370. 

'  2  Dod.  R.  100.  Wlicrc  a  vessel  is  seized  by  revenue  officers, 
the  mariners  discharged,  the  vessel  sold  during  seizure  by  her 
owner,  and  afterwards  liberated,  the  lien  of  the  mariners  for  wages 
is  not  destroyed.     The  8olon,  Crabbe's  R.  17. 


o 


36  THE     LAW    OF     SHIT  PING. 


ill  otlior  cases  of  the  same  kind,  and  that  the  reply 
was  that  no  objection  existed  on  the  part  of  the  Post- 
oflice  to  tlie  exercise  of  the  jurisdiction,  he  said  that 
disposed  altogether  of  the  objection,  and  left  him  at 
liberty  to  decide  upon  the  question  before  him  in  the 
same  way  as  he  would  in  the  case  of  any  other  ship. 

340.  Upon  the  same  ground,  namely,  of  public  in- 
convenience, indeed  of  public  danger,  the  Admiralty 
would  have  no  jurisdiction  in  rem  of  mariner's  claims 
for  wages  earned  whilst  serving  on  board  of  public 
ships  of  war,  foreign  or  domestic.  At  all  events, 
that  would  be  a  sufficient  reason  for  the  Admiralty 
to  refuse  to  entertain  jurisdiction  in  a  case  of  that 
sort,  if  it  otherwise  possessed  it.  But,  in  point  of 
fact,  upon  other  and  absolutely  conclusive  grounds, 
it  has  no  such  jurisdiction  at  all.  Because  the  wages 
of  the  seamen,  earned  on  board  a  public  ship  of  war, 
are  a  debt  against  the  government,  and  the  govern- 
ment cannot  be  sued.^ 

341.  But  it  is  different  if  the  wages  were  earned 
whilst  employed  on  board  of  letters  of  marque  ships. 
Because  they  are  private  ships,  fitted  out  by  private 
persons,  and  the  obligations  they  contract  are  pri- 
vate obligations,  to  be  maintained  and  enforced  like 
other  private  obligations. 

342.  In  proceedings  in  rem,  the  proper  forum  is 
the  locus  rei  slice.     A  proceeding,  therefore,  in  rem 


'Ellison  V.  The  Bellona,  Bee's  R.  112;   De  Moiter  v.  The 
South  Carolina,  Id.  422. 


t'c       n-cur-CTk-iT-      v  r\  t>      trr  i  /-i  -n  n  O  O  T 


OF    THE     SEAMAN    S    REMEDY    FOR    WAGES.     337 

may  be  maintained  in  our  Courts,  when  the  property 
of  a  foreigner  is  within  our  jurisdiction.  With  re- 
gard to  the  contracts  of  seamen  for  wages,  our  Courts 
have  proceeded  upon  the  ground  that,  when  they 
been  dissolved  by  the  reguLir  termination  of  the 
voyage,  or  by  the  wrongful  act  of  the  other  party, 
a  foreign  Court  may  well  entertain  jurisdiction  of 
them.  But  when,  on  the  other  hand,  the  voyage 
has  not  terminated,  or  the  seamen  have  bound  them- 
selves to  abide  by  the  decisions  of  the  tribunals  of 
their  own  country,  then  it  is  the  duty  of  a  foreign 
Court  to  decline  an}'  interference,  and  remit  the 
parties  to  their  own  tribunals  for  redress.^ 

343.  The  reason  of  the  distinction  acted  upon  in 
these  cases  by  foreign  Courts  is  satisfactorily  stated 
by  Judge  Peters,  in  the  case  of  The  Ship  Catharina.^ 
"  There  are,"  he  says,  "  in  most  nations  concerned  in 
commerce,  municipal  and  local  laws  relative  to  con- 
tracts with  mariners,  and  other  maritime  covenants 
and  agreements ;  though  the  great  leading  principles, 
or  outlines,  are  in  all  nearly  the  same.  On  this 
account,  among  others,  I  have  avoided  taking  cog- 
nizance, as  much  as  possible,  of  disputes  in  which 
foreign  ships  and  seamen  are  concerned.  I  have,  in 
general,  left  them  to  settle  their  diftcrences  before 
their  own  tribunals.  On  several  occasions,  I  have 
seen  it  a  part  of  the  contract  that  the  mariners 
should  not  sue  in  any  other  than  their  own  Courts ; 
and  I  consider  such  a  contract  lawful.  It  would  be 
against  law,  and  void,  if  it  were,  that  the  mariner 

'  The  Jerusalem,  2  CJallison's  11.  198. 
'  1  Peters'  Adm.  K.  104. 
22 


338  THE    LAW    OF     SIIirPING. 

should  not  sue  in  any  case,  or  that  he  should  not 
sue  in  the  proper  Court  or  Courts  of  his  country. 
But  when  the  voyage  of  a  foreign  ship  ended  here, 
or  was  broken  up,  and  no  treaty  or  compact  desig- 
nated the  mode  of  proceeding,  I  have  permitted  suits 
to  be  prosecuted.  In  such  cases,  I  have  determined 
according  to  the  laws  of  the  country  to  which  the 
ship  belonged,  if  there  existed  any  peculiar  variance 
or  difference  from  those  generally  prevailing.  I 
have  seldom  found  any  very  material  difference  in 
principle.' 


"1 


344.  The  jurisdiction  of  the  Admiralty  over  suits 
for  mariner's  wages  is  not  affected  by  the  circum- 
stance that  the  agreement  upon  which  the  suit  is 
founded  is  a  sealed  instrument.  Judge  Story,  in 
alluding  to  this  point  in  the  case  of  Harden  v. 
Gordon,^  said  that  the  distinction  between  a  special 
agreement  and  the  ordinary  agreement,  as  a  founda- 
tion for  jurisdiction  in  cases  of  seamen's  wages,  had 
alwaj's  appeared  to  him  to  be  little  more  than 
solemn  trifling  and  evasion.  The  princij)le  adopted 
by  our  Admiralty  Courts  is,  that  if  they  have  juris- 
diction of  the  subject-matter,  they  will  follow  it  out 
over  the  incidents.  It  was  formerly  supposed  that 
mariners  could  not  sue  in  the  Admiralty,  if  their 
contract  contained  any  unusual  covenants  or  stipu- 
lations. It  was  said  that  if  the  contract  for  service 
be  made  upon  terms  and  conditions  differing  from 

'  See,  also,  The  Nancy,  Bee's  R.  217 ;  The  Forsokct,  1  Peters' 
Ad.  R.  197 ;  The  St.  Oloff,  2  Peters'  Ad.  R.  428. 

»  2  Mason's  R.  544.  See  also  The  Fair  American,  1  Peters' 
Ad.  R.  92 ;  De  Lovio  v.  Boit,  2  Gallis.  R.  398. 


OF    THE     seaman's    EEMEDT    FOR    T^AGES.     339 

the  general  rules  of  la^Y,  the  service  alone  could  not 
entitle  a  mariner  to  his  wages.  His  right,  then, 
must  depend  upon  the  performance  of  the  stipulated 
terms ;  and  the  construction  of  the  instrument  con- 
taining those  terms  was  a  proper  subject  for  the 
jurisdiction  of  the  Courts  of  common  law.  But 
such  narrow  and  confined  views  of  the  powers  of 
the  Admiralty  have,  happily,  never  been  entertained 
in  this  country.  The  construction  of  a  written  in- 
strument is  a  proper  subject  for  every  Court  having 
cognizance  of  the  subject-matter;  and  in  American 
jurisprudence  this  rule  is  held  to  be  equally  as 
apjDlicable  to  the  Admiralty  as  to  any  other  Court.' 

345.  The  primary  security  of  the  mariner  for  his 
wages  is  the  lien  which  the  law  gives  him  upon  the 
vessel.  His  claim,  after  the  expenses  of  justice 
necessary  to  procure  a  condemnation  and  sale,  and 
such  charges  as  accrue  for  the  preservation  of  the 
vessel  after  she  is  brought  into  port,  holds  the  first 
rank,  and  is  to  be  first  paid.'^  If  the  voyage  is  an 
illegal  one,  no  wages  are  payable,  nor  can  be  re- 
covered in  any  Court  of  law ;  and  therefore,  in  such 
a  case,  there  can  be  no  lien.^ 

340.  Witli  regard  to  the  enforcement  of  the  mari- 
ner's lien,  there  is  no  fixed  time  within  which  it 
must  be  done.     As  with  other  maritime  liens,  so 

'  Dc  Lorio  V.  Boit,  2  Gallis.  K.  .'}f)8. 

»  The  Paragon,  Ware's  11.  3.'J0 ;  1  Valin's  Coiiira.  3G2 ;  Code  dc 
Commerce,  No.  11)1  ;  Consulat  de  la  Mcr,  Cli.  1.38. 

'  The  Langdon  Chcevca,  2  Mason,  58 ;  The  St.  Jago  dc  Cuba, 
9  Wliirit.  U.  100. 


340  THE  LAW  OF   snirriNG. 

with  this :  a  Court  of  Admiralty  will  require  vigi- 
lance in  parties  who  seek  its  aid,  and  will  not  sit  to 
enforce  stale  and  dormant  claims.  If  a  privileged 
creditor  remains  silent,  after  having  had  a  proper 
opportunity  to  enforce  his  lien,  and  suffers  the 
vessel  to  be  sold  to  a  purchaser  without  notice  of 
the  claim,  he  will  be  considered  as  waiving  his 
rights,  and  as  relying  on  the  personal  responsibility 
of  the  master  and  owner.^  The  simple  fact  that  the 
vessel  passed  into  other  hands,  after  the  lien  accrued, 
without  any  laches  on  the  part  of  the  seaman,  will 
not  operate  to  defeat  his  lien ;  nor  will  such  be  the 
effect,  under  the  same  condition,  if  the  vessel  makes 
one  or  more  voyages.^ 

'  The  Eastern  Star,  Ware's  R.  186,  212  ;  Bee's  Adm.  86. 

23  Kent,  197;  The  Mary,  1  Paine,  180;  The  Margaret,  3 
Hagg.  R.  238.  In  the  case  of  Packard  v.  The  Louisa,  2  Wood. 
&  M.  48,  Judge  Woodbury  held,  that  there  is  no  fixed  time  for 
liens  to  expire  which  exist  at  common  law,  except  the  time  of 
parting  with  the  possession,  and  none  in  maritime  liens,  when 
possession  does  not  exist  with  them  exclusively,  except  the  end  of 
the  next  voywje,  or  the  intervention,  after  it,  of  rights  by  third 
persons  without  notice.  "  The  claim  of  a  seaman  for  wages  on 
the  vessel,"  he  observed,  "is  a  species  of  lien  upon  an  article, 
which  he  should  not  long  forbear  to  enforce,  or  it  ma}'  become 
inequitable.  Having  assisted  to  keep  in  repair,  and  navigate  and 
use  her  for  purposes  profitable  to  the  owners,  and  having  been  so 
attached  to  it  by  a  contract  or  shipping-papers,  and  having  been 
exposed  to  all  the  risks,  and  toils,  and  responsibilities  of  a  seaman 
in  her,  he  is  allowed  a  privilege  to  charge  and  hold  her  for  his 
payment.  But  all  analogies  show  that  the  claim,  if  renewed 
after  being  long  abandoned,  will  mislead  the  public,  as  well  as 
the  owner.«,  and  embarrass  commerce  and  sales,  through  secret 
and  unknown  and  unrecorded  outstanding  claims.  Maritime  liens 
are  not,  like  common  law  liens,  limited  to  possession.  Indeed, 
exclusive  possession  seldom  accompanies  them  at  all.     But  they 


OF    THE     seaman's    REMEDY    FOR    WAGES.      341 

347.  Nor  does  he  lose  liis  lien  on  the  vessel  for 
his  wages  by  taking  an  order  on  the  owner  or  char- 
terer for  the  balance  due  at  the  close  of  the  voyage.^ 

are  claims  in  rem,  or  charges  in  ran,  having  priority,  and  are  to 
be  seasonably  enforced,  else  they  may  work  great  fraud  in  the 
community  when  possession  is  not  taken  or  retained,  and  no  public 
register  or  record  is  made  of  them,  and  the  property  thus  secretly 
encumbered  is  allowed  to  depart,  it  may  be,  again  and  again,  to 
the  opposite  side  of  the  globe."  See  also  The  Nestor,  1  Sumner's 
R.  87 ;  Ex  parte  Foster,  2  Story's  R.  145 ;  Acts  U.  S.  of  July 
20th,  1790,  and  June  19th,  1813;  The  Rebecca,  Ware's  R.  212. 

In  the  case  of  The  Sloop  Solon,  Crabbe's  R.  17,  it  was  held 
that  a  libel  will  be  sustained,  though  the  vessel  has  made  a  second 
voyage  since  the  cause  of  libel  accrued,  if,  by  her  sudden  departure, 
the  prosecution  of  the  claim  was  previously  prevented.  And  in 
the  case  of  The  Schooner  Jane,  Id.  178,  where  a  seaman,  shipped 
for  a  part  of  a  voyage,  was  discharged  at  the  termination  of  his 
engagement,  without  payment  of  wages,  it  was  held  that,  in  such 
a  case,  if  the  seaman  makes  every  exertion  to  follow  up  the  vessel, 
and,  immediately  upon  meeting  her,  commences  proceedings  against 
her,  his  lien  for  wages  is  not  destroyed,  though  the  vessel  has 
made  one  or  more  voyages  since  his  discharge. 

In  Holmes  v.  The  Lodemia,  Id.  434,  Judge  Ilopkinson  decided 
that  a  forbearance  to  sue  for  nine  months,  even  if  the  libellant  was 
on  the  spot,  and  the  vessel  within  the  power  of  the  Court  during 
that  time,  does  not  raise  a  presumption  of  payment,  either  in  the 
Admiralty  or  any  other  Court.  The  mere  fact  that  a  plaintiff  in 
the  Admiralty,  or  in  any  other  Court,  has  discontinued  his  action, 
is  not  a  bar  to  a  subsequent  suit. 

'  The  Eastern  Star,  Ware's  R.  185,  This  was  a  suit  in  rrm 
for  seamen's  wages.  It  was  not  disputed  that  the  services  had 
been  performed,  or  that  there  was  a  balance  due  to  the  libellants. 
At  the  time  wlicn  the  contract  was  made  with  the  seamen,  the 
vessel  was  owmd  l,y  Mr.  Iloudlette;  a  few  days  after,  she  was 
conveyed  to  -^Ir.  Amory,  as  focurity  for  a  debt  which  Iloudlette 
owed  him,  but  the  vessel  remained  under  the  direction  of  Iloud- 
lette, and  was  employed  for  Iii.s  benefit.  On  her  return  from  her 
voyage,  the  master  ascertained  the  balance  of  wages  duo,  and  gave 


342  THE    LAW    OF    SHIPPING. 

The  general  doctrine  is,  that  if,  by  the  local  law,  the 
acceptance  of  a  negotiable  security  for  a  pre-existing 
debt  by  t^imple  contract  is  held  to  be  payment,  and 
an  extinguishment  of  the  original  cause  of  action, 
then  the  acceptance  of  such  security  by  a  privileged 
creditor  will  defeat  his  lien.  Judge  Ware,  however, 
in  the  case  of  The  Betsey  and  Rlioda,^  qualified  the 
general  doctrine,  so  far  as  it  is  applicable  to  the 
claims  of  seamen,  and  held  that,  to  operate  as  a 
waiver  of  their  privilege  and  an  extinction  of  their 
lien,  it  should,  in  the  first  place,  be  distinctly  stated 
to  them  that  such  would  be  the  result  of  the  accept- 
ance of  the  negotiable  security,  and  also  (such  was 
the  inclination  of  his  mind)  that  the  note  should  be 
accompanied  with  some  other  security,  in  addition 
to  the  personal  liability  of  the  owners,  as  an  equiva- 

to  each  of  the  men  an  order  on  Houdlette  for  the  amount.  The 
master,  whose  deposition  was  taken,  stated  that  these  orders  were 
not  considered  by  him  as  payment,  but  mere  memorandums,  show- 
ing the  amount  due,  and  that  they  were  so  considered  by  the  sea- 
men. They  were  presented,  and  not  paid;  but  a  verbal  promise 
was  given  to  pay  them  when  Houdlette  should  receive  the  proceeds 
of  the  sale  of  the  cargo.  On  this  promise,  the  seamen  delayed  to 
enforce  their  claims,  and  the  vessel  proceeded  on  another  voyage. 
The  right  of  the  seamen  to  recover  against  the  vessel  was  objected 
to  on  two  grounds:  1.  That  the  orders  given  on  Houdlette  were 
to  be  treated  as  bills  of  exchange,  and  that  the  acceptance  of  these 
was  a  discharge  of  their  lien  on  the  vessel;  2.  That  the  lien  was 
lost  by  neglect  to  enforce  it  in  due  season.  But  Judge  Ware  held 
that  the  reasonable  construction  of  the  drafts,  and  the  one  con- 
formable to  the  intention  of  the  parties,  was  that  they  were  mere 
memorandums,  showing  to  the  merchant  the  balance  of  wages  due 
and  unpaid ;  and  their  receiving  them  was  not  a  waiver  of  any  of 
their  rights  against  the  vessel  or  the  master  or  owners. 
'  Davies'  Adm.  II.  112. 


OF    THE    seaman's    REMEDY    FOR    TVAGES.     343 

lent  and  a  compensation  for  the  discharge  of  the 
lien.  The  lien  of  seamen's  wages  exists  in  all  cases 
as  much  against  the  government,  becoming  pro- 
prietors by  way  of  purchase,  or  forfeiture,  or  other- 
wise, as  it  does  against  the  particular  things  in  the 
possession  of  a  private  person.^ 

348.  The  master  of  an  apprentice  may  recover 
his  wages,  whether  taken  on  board  with  or  without 
his  assent.  In  the  case  of  Eades  v.  Vandepert,^  the 
apprentice  had  been  impressed,  and  detained  on 
board  the  defendant's  ship,  which  was  a  man-of-war. 
The  only  witness  to  charge  Captain  Vandepert  with 
knowledge  was  the  apprentice  boy  himself,  who 
swore  that,  after  he  had  been  impressed  and  carried 
on  board  the  ship,  he  told  the  defendant,  the  cap- 
tain, that  he  was  an  apprentice,  and  required  his 
discharge,  which  was  refused.  It  was  held  that  this 
evidence  was  sufficient,  and  that  the  captain  ought 
to  have  made  inquiry  into  the  truth  of  what  the 
boy  said;  for  after  that  information  he  detained 
him  at  his  peril;  and  it  was  admitted  that,  if  the 
indentures  had  been  produced,  the  defendant  would 
have  been  bound  to  have  discharged  the  boy, 

349.  The  owner  of  a  skive  may  likewise  maintain 
an  action  for  his  wages;  and  the  contract  must  be 
construed  witli  reference  to  the  lex  loci  contractus? 
If  the  Hlavc  sliouhl  desert  during  the  voyage,  neither 


'  United  States  v.  Wilder,  3  Sura.  R.  314. 
I  5  EaHt,  39,  note. 

8  Stone  V.  Godct,  Bee's  Adm.  R.  95;  Emerson  v.  Ilowlaud,  1 
Mason,  R.  45. 


344  THE    LAW    OF    SlIirPING. 

the  master  nor  owner  of  the  ship  woukl  be  respon- 
sible to  his  owner  for  the  loss.  In  the  case  of 
slavery,  as  to  rights  and  remedies,  the  owner  is 
substituted  by  the  law  in  lieu  of  the  slave. ^ 

350.  In  suits  where  the  mariners  have  a  common 
interest  in  the  point  in  contest,  they  are  nevertheless 
permitted  to  testify  for  each  other.  The  fact  would 
work  strongly  against  their  credit,  but  it  does  not 
aflect  their  competency.^  But  where  they  are  di- 
rectly interested  in  the  event  of  the  suit,  their  testi- 
mony is  rejected.^  The  master  is  personally  liable 
for  wages,  though  the  seamen  may  proceed  m  rem 

'  Stone  V.  Godet.  Bee's  Adra.  R.  95 ;  Carey  v.  The  Betty, 
Ibid.,  255. 

^  Spurr  V.  Pearson,  1  Mason,  R.  104 ;  Hoyt  v.  Wildfire,  3 
John.  R.  518.  Upon  this  point  the  common,  civil,  and  maritime 
law,  agree.  Judge  Peters,  however,  was  in  the  habit  of  rejecting 
the  testimony  of  mariners  in  suits  where  they  were  interested  in 
the  question,  although  not  in  the  event  of  the  suit.  In  the  case 
of  Thompson  v.  The  Ship  Philadelphia,  1  Peters'  Adra.  R.  210, 
he  thus  stated  the  principle  upon  which  he  proceeded :  "  On  the 
point  of  admitting  seamen  to  be  witnesses  for  each  other,  it  is 
settled  here  that  one  seaman  cannot  be  a  witness  for  another,  if 
the  witness  and  the  party  have  a  common  interest  in  the  point  in 
contest.  If  the  question  be  the  loss  of  the  ship,  embezzlement 
equally  affecting  the  whole  crew,  negligence,  misfeasance,  or  mal- 
feasance, to  which  all  must  contribute  in  damages,  one  of  the  crew 
cannot  be  admitted  a  witness  for  another.  But  where  special  cir- 
cumstances distinguish  cases, — where  one,  having  made  a  similar 
contract  with  the  other,  the  breach  or  performance  whereof  may 
happen  without  aflfccting  the  other, — where  special  indulgences 
are  given  to  one,  though  not  to  the  rest, — a  seaman  may  be  a 
witness  for  another.  Where  seamen  are  involved  in  similar 
breaches  of  contract,  though  the  agreement  of  each  is  separate 
and  independent,  I  hear  them  with  caution.  But  this  affects 
credit,  not  competency." 

=>  Ibid. 


OF    THE     seaman's    REMEDY    FOR    WAGES.     345 

against  the  ship,  or  in  personam  against  the  owner. 
If  the  vessel  is  not  valuable  enough  to  discharge  the 
lien,  or  the  owner  is  in  bad  circumstances,  and  the 
master  solvent,  he  must  paj  the  debt.  It  is  his 
interest  to  throw  the  responsibility  off  himself;  and 
this  interest  has  been  supposed,  in  the  Courts  of  this 
country,  to  be  sufficient,  upon  strict  legal  principles, 
to  exclude  him  from  testifying.^ 

351.  This  doctrine,  however,  has  met  with  a  good 
deal  of  criticism,  and  is  encountered  by  the  opinion 
of  Lord  Stowell,  in  the  case  of  The  Lady  Ann.^ 
The  question  arose  in  that  case  on  the  admission  of 
a  defensive  allegation  oflered  on  the  part  of  the 
owners  of  the  vessel,  in  opposition  to  a  demand  of 
wages  by  a  mariner.  The  objection  taken  was  that 
the  master  was  an  incompetent  witness,  and,  conse- 
quently, that  the  owners  were  not  at  liberty  to  plead 
the  letters  which  they  received  from  him,  stating  the 
arrival  of  the  ship  in  the  West  Indies,  and  the  deser- 
tion of  the  party  who  brought  the  suit.  But  this 
objection  was  overruled.  "  I  am  not  aware,"  said 
Sir  WilHam  Scott,  "  of  any  general  objection  to  the 
competency  of  the  master  of  a  vessel  as  a  witness 
in  a  suit  for  wages.  The  mariner  has  his  election 
whetlicr  lie  will  proceed  against  the  owners,  the 
master,  or  the  ship;  and  in  this  case,  the  proceed- 
ings being  instituted  aLMinst  the  owners,  the  master 


'  The  Phoenix,  1  Pet.  Ad.  K.  t201 ;  Mahjiic  v.  Ikll,  J  bid.  130; 
Atkyns  v.  lJurrows,  Ihid.  244;  Duiilap'a  Adm.  Practice,  243, 
244;  (jallfiway  v.  Morris,  3  Yates,  II.  440;  Tlic  William  Harris, 
Ware's  11.  370,  371  ;  The  Hope,  2  Gallis.  11.  48. 

^  Edwards'  Ad.  11.  236;  sec  Conkling's  U.  S.  Adm.  Gtl. 


34G  THE    LAW    OF    SUIPPING. 

has  no  immediate  interest  in  the  suit,  and  therefore 
is  not  an  incompetent  witness  by  any  rule  with 
which  I  am  acquainted,  though  it  may  certainly  be 
necessary  to  watch  his  testimony  with  jealousy,  as 
his  conduct  may  constitute  a  material  part  of  the 
adverse  case."  The  master  is  an  incompetent  wit- 
ness to  support  any  matters  of  defence  set  up  which 
originate  in  his  own  acts,  because  for  those  acts  he 
may  be  held  personally  responsible.^ 

352.  When  the  advance  wages  of  a  seaman  are 
charged  in  the  shipping-paper,  the  suppletory  oath 
of  the  master  is  required  to  make  it  proof.  Unsup- 
ported by  his  oath,  it  is  no  further  evidence  than 
any  book  charge.^  The  master  is  not  a  competent 
witness  to  prove  that  a  medicine-chest  was  on  board, 
for  the  purpose  of  throwing  the  expense  of  medical 
advice  on  a  seaman.  For,  if  there  were  no  legal 
exception  to  his  competency,  he  would  hardly  be 
considered  a  proper  witness  to  prove  the  sulliciency 
of  the  medicine-chest,  or  to  satisfy  a  Court  that  it 
was  accompanied  with  suitable  directions  for  admi- 
nistering the  medicine.  But,  by  the  Act  of  Congress 
of  1790,^  the  master  is  made  personally  liable  for  the 
expenses  of  medical  advice  ;  and  therefore,  if  he  were 
admitted  as  a  witness,  he  would  swear  directly  to 
his  own  discharge.  He  is,  therefore,  for  that  pur- 
pose, a  clearly  incompetent  witness." 

353.  A  receipt,  signed  by  a  seaman,  in  full  for 

'  The  William  Harris,  Ware's  R.  367 ;  Robinett  v.  The  Exeter, 
2  Rob.  Ad.  R.  201.  It  should  be  observed  that,  in  this  latter 
case,  the  master  was  two-thirds  owner  of  the  vessel. 

2  The  David  Pratt,  Ware's  R.  495.  "  Ch.  29,  s.  8. 

*  The  William  Harris,  Ware's  R.  367. 


OF     TUE     seaman's     REMEDY    FOR     T7AGES.      347 

wages,  is  only  prima  facie  evidence  of  payment.  It 
is  by  no  means  conclusive.  It  is  open  to  explana- 
tion by  every  kind  of  legal  evidence.  And  it  is  of 
no  greater  effect,  nor  further  conclusive  on  the  rights 
of  the  parties,  in  consequence  of  having  a  seal  an- 
nexed to  it.  A  Court  of  Admiralty  is,  as  to  all 
matters  falling  within  its  jurisdiction,  a  Court  of 
Equity,  and  is  free  from  the  artificial  and  technical 
rules  of  the  common  law  in  dealing  with  contracts 
between  seamen  and  ship-owners.^ 

354.  We  close  this  chapter  by  observing,  that 
when  the  hirer  of  a  vessel  has  the  possession  trans- 
ferred to  him,  and  he  appoints  the  master  and  crew, 
and  sails  her  at  his  own  expense,  and  has  the  entire 
control,  he  is  considered  as  succeeding  to  all  the 
rights  and  liabilities  of  the  owners.  lie  is  substi- 
tuted  in  their  place,  and  is  liable  for  the  wages  of 
the  seamen.^     In  the  case  of  Skolfield  v.  Potter/ 


'  Tliornc  V.  White,  1  Peters'  Adm.  R.  178;  Jackson  v.  White, 
Id.  170;  Whiteman  v.  The  Neptune,  Id.  182;  Thomas  v.  Lane, 
2  Sumner's  11.  11;  The  David  Pratt,  Ware's  R.  495;  Harden  v. 
Gordon,  2  Mason's  R.  5G1.  In  this  latter  case,  Judge  Story 
decided  that  when  a  receipt  is  given  in  full  of  all  demands,  it  is 
not  to  be  taken  in  the  Admiralty  as  conclusive.  It  is  open  to 
explanation,  and,  upon  satisfactory  evidence,  may  be  restrained  in 
its  operation.  IJut  the  natural  presumption  is  in  its  favor;  and 
that  presumption  will  prevail,  until  it  is  displaced  by  direct  proof 
or  strong  circumstances. 

In  Whitney  v.  Eager,  Crabbe's  R.  422,  it  was  held,  that  where 
the  payment  of  a  seaman's  wages  is  refused  unless  he  signs  a 
receipt  containing  a  release  of  all  complaints  against  his  ollicer.s, 
no  attention  whatever  will  be  paid  to  such  release. 

2  ?,  Kent,  13G;  Reeve  v.  Davis,  1  Adol.  k  Kills,  135;  Skolfield 
V.  Potter,  Davics'  R.  302. 

9  Davics'   R.  392.     See,  also,  to  the  same  effect,  The  Sloop 


348  THE  LAvr  OF   snipriNG. 

.Tiuli:^e  Ware  lield,  that  when  a  vessel  is  let  to  the 
master,  to  be  employed  by  him,  and  he  to  pay  to  the 
owners  a  certahi  portion  of  her  earnings,  the  owners 
will  be  liable  to  the  seamen  for  their  wages,  though 
by  agreement  the  master  is  to  have  the  entire  con- 
trol of  the  vessel,  to  victual  and  man  her,  and  furnish 
supplies  at  his  own  expense ;  unless,  at  the  time  of 
shipping,  this  contract  is  made  known  to  them,  and 
thev  are  informed  that  they  are  to  look  to  the  mas- 
ter as  the  only  owner. 

355.  This  doctrine  is  ably  vindicated  by  Judge 
Ware,  and  mainly  upon  the  ground  that  the  money 
paid  over  by  the  master,  under  his  contract,  is  paid 
as  freight ;  and  the  owners  as  receivers  and  having 
an  interest  in  the  freight,  are  liable  to  the  seamen 
for  their  wages.  "  By  the  ancient  maritime  law," 
he  observes,  "  the  title  of  seamen  to  wages  is  made 
to  depend  on  the  issue  of  the  adventure,  for  which 
they  are  engaged.  Unlike  other  contracts  of  hiring, 
their  right  to  compensation  docs  not  depend  alone 
on  the  fidelity  and  skill  with  Avhich  they  perform  the 
services  for  which  they  engage ;  but  with  whatever 
perseverance  and  courage  they  exert  themselves, 
their  right  to  compensation  is  suspended  on  contin- 
gencies, which  may  affect  the  ultimate  result  of  the 

Fashion,  American  Law  Jour.,  vol.  iv.,  N.  S.  279  ;  Webb  v.  Pierce, 
14  Law  Rep.  200;  llich  v.  Coe,  Cowpcr,  G3G;  Story  on  Agency, 
8.  298 ;  The  Ca.ssius,  2  Story'.s  R.  93 ;  The  Nathaniel  Hooper,  3 
Sum.  R.  577.  But  see  contra,  Taggard  v.  Loring,  16  Mass.  R. 
336;  Emery  v.  Her.sy,  4  Greenl.  407;  Thompson  v.  Hamilton,  12 
Pick.  425 ;  Cutler  v.  Thurlo,  20  Maine,  213 ;  Thompson  v.  Snow, 

4  Greenl.  264;  Cutler  v.  Win.sor,  6  Pick.  335;  Perry  v.  Osborne, 

5  Id.  422;  Planter  v.  Holmes,  10  Met.  402;  Sproat  v.  Donncll, 
26  Maine,  185. 


OF     THE     SEAMAN    S     REMEDY     FOR     WAGES.     349 

voyage ;   it  is  made  dependent  on  what  has  been 
termed  the  fortune  of  the  vesseh 

356.  "  What,  then,  is  this  fortune  to  which  the 
seamen  must  look?  The  ship,  says  Emerigon,  in 
the  condition  in  which  she  was  at  the  time  of  her 
departure  from  the  port  of  outfit,  together  with  all 
the  freight  which  is  gained  in  the  course  of  the 
voyage,  form  that  fortune  of  the  vessel  which  consti- 
tutes the  pledge  to  the  seamen  for  their  wages.' 
The  privileged  hypothecation,  then,  he  adds,  allowed 
to  the  mariners,  comprehends  every  part  of  the  ship, 
and  every  part  of  the  freight,  according  to  the  nature 
of  hypothecation,  which  is  iota  in  toto  ei — iota  in  qua- 
lihet  parte.  Their  privileged  lien  is  entire  over  the 
whole,  and  is  entire  in  every  part.  The  ship  and 
freight,  with  respect  to  wages,  form  one  mass,  and 
all  that  remains  of  either,  at  the  end  of  the  voyage, 
is  pledged  for  their  payment.  The  contract  of  the 
mariners,  Emerigon  goes  on  to  say,  is  a  species  of 
copartner.ship.  It  is  not,  indeed,  a  copartnership  as 
to  all  the  effects  of  that  contract,  but  as  to  some  of 
its  consequences;  for  the  seamen  have  no  claim  to  a 
remuneration,  but  to  the  extent  of  the  effects  em- 
Ijarked  in  the  enterprise  which  they  bring  home.  If 
all  is  lost,  the  mariners  lose  their  wages,  and  they 
cannot  then  enforce  tlie  payment  by  a  personal  ac- 
tion against  the  master  or  owners.  15ut  if  all  is  not 
lost,  whatever  remains  of  the  ship  or  freight  is  speci- 
fically pledged  for  their  payment.  Freight  earned, 
and  put  ashore,  is  saved  from  the  effect  of  a  super- 
vening shipwreck,  by  which  all  that  remains  is  lost. 
It  is  a  partnersliip  fund  that  has  entered  the  common 

'  Trait  dcs  As-iiuranccs,  ch.  17,  bcc.  11. 


350  THE   LAW   OF   siiirriNG. 


chest,  ami  is  hypothecated  to  the  seaineu  for  their 


wages. 


357.  "  It  appears  hy  the  testinioii}^  of  the  master, 
who  was  examined  as  a  witness  in  the  case  for  the 
respondents,  that  he  has  paid  over  to  them,  at  dif- 
ferent times,  $G00,  and  that  on  a  cargo  of  lumber 
carried  for  them,  the  freight  was  $500,  which  has 
not  been  paid  to  him,  but  remains  as  part  of  the 
earnings  of  the  vessel  in  their  hands.  In  addition 
to  this,  the  freight,  on  the  cargo  brought  home  in 
the  vessel  on  her  return  to  Bath,  was  received  and 
collected  by  one  of  the  owners,  and  is  now  in  their 
hands. 

358.  "  Now  every  dollar  of  this  money  was  hypo- 
thecated to  the  seamen,  as  soon  as  it  was  earned,  for 
their  wages.  To  the  amount  due  to  them,  it  was 
their  own  hard  earnings,  and  whoever  received  it  as 
freight,  received  it  subject  to  their  claims.  As  the 
freight,  says  Emerigon,  is  the  fruit  of  the  vessel,  it  is 
just  that  it  should  first  be  appropriated  to  pay  the 
wages  of  those  whose  labor  has  produced  it.  This 
destination  of  freight  is  derived  from  the  nature  of 
things,  while  their  privilege  against  the  vessel  is 
against  common  right. ^ 


359.  "  But  it  seems  to  me  that  the  decision  may 
more  properly  be  put  on  a  broader  ground.  Where 
the  owners  put  their  vessel  into  the  hands  of  a  mas- 
ter, to  be  employed  by  him  on  shares,  I  am  prepared 
to  hold  as  a  just  deduction  from  the  principles  and 
general  policy  of  the  maritime  law,  that  they  will 

'  Assurances,  ch.  17,  s.  11,  No.  3. 


OF    THE     seaman's    REMEDY    FOR    WAGES.     351 

continue  liable  to  the  seamen  for  their  wages,  not- 
w^ithstanding  the  entire  control  of  the  vessel  may  be 
surrendered  to  the  master,  unless  the  seamen,  at  the 
time  of  their  engagement,  are  notified  that  the 
master  is  to  be  considered  as  the  sole  owner,  and 
that  they  are  not  to  be  liable.  The  rights  of  the 
seamen  ought  not  to  be  affected  by  this  private 
agreement  between  the  master  and  owners. 


"O' 


360.  "  Even  if  the  doctrine  of  the  modern  decisions 
is  admitted,  and  the  owners  are  held  not  liable  to 
merchants  who  furnish  supplies,  there  are  strong  ob- 
jections to  extending  the  principle  to  the  contracts 
of  seamen.  They  enter  into  their  engagements  in 
the  confidence  that  they  have  the  usual  and  legal 
securities  for  their  wages.  •One  of  these,  to  which  a 
seaman  haljitually  looks,  is  the  personal  liability  of 
the  owners.  But  in  this  case,  there  will  be  in  fact  no 
owner,  and  the  only  personal  security  they  have  is 
that  of  the  master.  Another  reason  is,  the  freight, 
which  is  paid  to  the  master,  is  the  proper  fund  for 
the  payment  of  the  wages.  In  the  hands  of  the 
master,  the  whole  of  it  is  liable  for  them.  But  here 
the  freight  is,  from  time  to  time,  paid  over  for  the 
hire  of  the  vessel,  and  only  one-half  of  it  remains  in 
his  hands,  at  the  close  of  their  service,  to  respond  for 
their  claims.  This  private  agreement  between  the 
owners  and  master,  operates  as  a  perfect  surprise 
upon  them.  My  opinion  is,  that  they  ought  to  be 
held  as  owners." 

301.  Tliis  chiljoratc  opinion  ol". Judge  Ware  would 
seem  to  run  counter  to  the  current  of  American  au- 
thority in  analogous  cases.     There  may  be  sullicieut 


352  THE    LAW    OF     SlIimNG. 

grouiuls  to  di-stinguish  the  case  of  supplies  from  the 
case  of  wages,  but  aside  from  equitable  considera- 
tions, the  same  principle  is  equally  applicable  to  both 
cases.  They  stand  upon  a  common  basis.  Judge 
Curtis,  however,  in  the  recent  case  of  Webb  v. 
Pierce,'  thus  qualified  the  application  of  the  general 
doctrine  established  by  that  decision.  "  To  prevent 
misapprehension,  I  desire  to  state  that  I  have  ex- 
amined the  able  opinion  of  Judge  Ware  in  Skolfield 
V.  Potter,  in  which  he  charged  the  general  owners 
of  a  vessel  let  on  shares  with  the  wages  of  a  seaman. 
There  are  elements  in  that  case  on  which  the  deci- 
sion may  rest  consistently  with  the  principles  upon 
which  this  case  has  been  decided,  and  I  do  not  in- 
tend to  express  any  opinion  as  to  a  claim  for  wages 
on  a  general  owner  who  has  received  freight  earned 
in  the  voyage,  for  which  wages  are  claimed." 

362.  In  the  recent  case  of  The  Sloop  Fashion,^  it 
was  held  by  Judge  Betts,  that  a  sloop  and  craft 
navigating  the  waters  of  a  State,  or  its  vicinity,  and 
taken  by  the  master  on  condition  that  he  victual  and 
man  her,  and  divide  the  earnings  of  the  vessel  with 
the  owner,  if  such  arrangement  is  known  to  the 
hands  or  seamen,  the  vessel  is  exempt  from  liability 
to  the  seamen  for  their  wages  on  such  hiring. 

'  15  Law  Rep.  9.  In  this  case  it  was  held,  that  when  a  master 
hires  a  vessel  "  on  shares,"  under  an  agreement  to  victual  and 
man  her,  and  employ  her  in  such  voyages  as  he  thinks  best, 
having  thereby  the  entire  possession,  command,  and  navigation  of 
the  vessel,  and  the  relation  of  principal  and  agent  not  existing  be- 
tween the  master  and  owners,  the  master  thereby  becomes  the 
owner  pro  7iac  vice,  during  such  time  as  the  contract  exists,  and  he, 
and  not  the  general  owner,  is  responsible  for  necessary  supplies. 

'  4  American  Law  Journal,  N.  S.  279,  280. 


PAET  11. 


CHAPTER   I. 

OF  PART-OWNERS. 

363.  Property  in  a  ship  may  be  acquired  by  two 
or  more  persons,  either  by  building  it  at  their  own 
expense,  or  by  the  purchase  of  a  part  thereof  of  the 
sole  owner,  or  by  a  joint  purchase  of  the  whole  of 
another  person.  But,  whether  acquired  by  the  joint 
building,  or  by  a  part  purchase,  or  by  a  joint  pur- 
chase, the  parties,  in  the  absence  of  all  positive  stipu- 
lations to  the  contrary,  become  entitled  thereto,  as 
tenants  in  common,  and  not  as  joint-tenants.  In 
this  respect,  it  will  make  no  diiference  whether  the 
title  is  acquired  at  one  and  the  same  time,  by  and 
under  one  and  the  same  instrument,  or  whether  it  is 
acquired  at  different  times,  and  under  different  in- 
struments. This  is  the  natural,  if  not  the  necessary 
result  of  the  doctrine,  that  the  jus  accrescemU  has  no 
existence  among  merchants,  or  in  the  business  of 
commerce  and  navigation.  A  different  doctrine, 
which  should  introduce  into  the  maritime  law  the 
narrow  doctrine  of  the  common  law,  as  to  joint-te- 
nancy and  the  right  of  survivorship,  would  be  fatal 
to  tlio  interests  of  commerce,  and  overthrow  the 
plain  dictates  of  ))nl)li(;  jjolicy.  The  whole  course  of 
commercial  usag*.'  ;iii(l  opinion  lias  selllcd  (lie  doc- 
trine   the   other  way;    and,   accordingly,    upon    the 


356  THE    LAW    OF    SHIPPING. 

death  of  one  of  the  part-owners,  his  executors  and 
administrators  become  tenants  in  connnon  of  the 
ship  with  the  survivors.  Of  course,  the  general  rule 
of  law,  as  to  the  rights  of  tenants  in  common,  pre- 
vails in  regard  to  ships,  that  each  part-owner  can 
sell  only  his  own  share  thereof;  whereas,  in  cases  of 
partnership  (although  not  in  cases  of  joint-tenancy), 
any  one  partner  can  sell  the  entirety  of  the  ship.^ 

'  Story  on  Partnership,  584.  See  also  Campbell  v.  Steele,  1 
Jones,  394  ;  Knox  v.  Campbell,  1  Barr,  3GG ;  Hopkins  v.  Forsyth, 
2  Harris,  34 ;  Patterson  v.  Chalmers,  7  B.  Monroe,  595 ;  Helm  v. 
Smith,  20  Com.  Law  Cond.  R.  300;  Hewitt  v.  Sturdevant,  4  B. 
Mon.  459;  Hinton  v.  Law,  10  Missouri  R.  701.  It  was  held  in 
this  case,  that  one  part-owner  of  a  boat  cannot  sue  the  others  at 
law  for  services  rendered  by  him  as  clerk,  under  employment  by 
the  captain,  also  a  part-owner.  Moody  v.  Buck,  1  Sandf.  S.  C  R. 
304;  Macy  v.  De  Wolf,  3  Wood.  &  M.  193.  "To  hold  part- 
owners  to  be  partners,"  said  Judge  Woodbury,  in  this  case,  "  with- 
out an  express  contract  to  that  effect,  would  not  only  violate  the 
legal  principles  which  govern  other  tenancies  in  common,  but 
enable  one  part-owner, — though  of  only  one-hundredth  part, — to 
sell  the  whole  ship  or  whole  property  owned  in  common,  which  is 
neither  in  conformity  to  usage  or  the  fitness  of  things  in  such 
adventures."  But  see  Shirley  v.  Steamer  Bride,  5  Louis.  R.  200, 
where  it  was  held,  that  owners  of  steamboats  are  commercial  part- 
ners. This  decision  was  based  upon  Article  279G  of  the  Civil 
Code. 

The  doctrine  laid  down  by  Judge  Story,  however,  which  I  have 
incorporated  in  the  text,  and  in  the  very  language  which  he  em- 
ploys, is  abundantly  supported  upon  every  point  by  the  numerous 
authorities  which  he  cites,  and  is  without  doubt  the  rule  of  Ameri- 
can law.  An  opinion,  however,  has  been  expressed,  and  by  a  very 
learned  and  eminent  author  (we  refer  to  Abbott  on  Shipping,  p.  1, 
ch.  3,  §  1),  that  when  a  ship  is  not  conveyed  in  several  and  dis- 
tinct shares,  but  the  entire  ship  is  granted  to  a  number  of  persons 
generally,  that,  in  such  a  case,  they  become  joint-tenants  at  law, 
and  that  the  tu\c,jus  accrescendi  inter  mercatores  locum  noa  hahet, 


OF    PART-OWNERS.  357 

3C4.  While,  however,  the  general  relation  between 
part-owners  is  that  of  tenants  in  common,  it  must 
not  be  understood  that  it  is  invariably  and  indis- 
pensably so.  On  the  contrary,  a  ship  may  be  the 
subject  of  partnership  as  well  as  anything  else.  But 
when  this  occurs,  it  constitutes  an  exception  to  the 
general  rule,  and  must  be  specially  shown.  When 
a  person  is  to  be  considered  as  part-owner,  and  when 
as  a  partner,  in  a  ship,  depends  on  circumstances.^ 


which  is  applicable  to  a  ship,  is  to  be  enforced  only  in  a  Court  of 
Equity.  The  point  is  a  novel  one,  and  there  has  not  been,  so  far 
as  I  know,  any  direct  adjudication  upon  it.  It  is  not,  however, 
unusual  to  omit  any  specification  of  the  shares  of  each  part-owner, 
both  in  the  register  and  bill  of  sale ;  and  it  never  has  been  held, 
that  such  an  omission  made  the  parties  joint-tenants  with  benefit 
of  survivorship.  See  IMcrrill  v.  Bartlctt,  G  Pick.  46 ;  Thorndike 
V.  De  Wolf,  G  Ibid.  120;  Glover  v.  Austin,  Ibid.  209,  221,  222; 
Ohl  V.  Eagle  Ins.  Co.,  4  Mason,  172,  390;  Gould  v.  Gould,  G 
Wend.  2G3  ;  Hopkins  v.  Forsyth,  2  Harris,  34 ;  Nicoll  v.  ^lum- 
ford,  20  John.  R.  Gil ;  Abbott  on  Ship.,  p.  124.  See  also  8  Kent, 
154. 

We  may  here  observe,  that  while  it  is  the  settled  principle,  that 
the  interest  of  part-owners  is  so  far  distinct  that  one  of  them  can- 
not dispose  of  the  share  of  the  other,  yet  if  the  co-tenant  subse- 
quently ratifies  the  sale,  it  becomes  in  effect  a  ratified  sale  by  all. 
If  a  co-tenant  sells  the  common  property  as  exclusively  his  own, 
sucli  sale  is  a  conversion,  and  the  other  tenant  may  maintain  trover 
therefor  against  him  ;  or  he  may,  in  case  the  purchaser  also  sells 
and  delivers  the  property  as  his  own,  iii:iiiit;iin  trover  against  such 
purchaser  for  the  subsequent  conversion.  The  sale  by  one  tenant 
is  deemed  a  constructive  destruction  of  the  property  held  in  com- 
mon, but  a  mere  dispossession  of  one  tenant  in  common  by  his 
co-tenant,  docs  not  amount  to  such  constructive  destruction  of  the 
propt  rfy,  and  docs  not  afi'iird  a  ground  of  action  in  trover.  Sco 
Ablfott  on  Sliipping,  p.  128,  note. 

»  Iliirding  v.  Koxcroft,  6  Grcenlcaf's,  R.  77;  3Iacy  v.  Do  Wolf, 
3  W.  &  M.  193;  I'hillipg  v.  Puriiigton,  15  Maine,  425;  Scabrook 


358  THE     LAAA'    OF     SIIirPING. 

365.  Ships  were  "originally  invented  for  use,  and 
profit,  not  for  pleasure  or  delight;  to  plough  the 

V.  Rose,  2  Hill's  (S.  C.)  Ch.  R.  555 ;  Lamb  v.  Durant,  12  Mass. 
54 ;  Nicoll  v.'  Muiuford,  20  John.  Gil ;  1  East.  20,  8  B.  &  Cres. 
12;  3  Kent's  Com.  154  j  Doddington  v.  Ilallett,  1  Vcsey,  497.  The 
doctrine  declared  by  Lord  Hardwickc  in  this  case,  so  far  as  it 
affirms,  that  a  ship  may  be  the  subject  of  a  partnership,  is  the 
settled  law  of  this  country.     But,  Mr.  Belt,  in  his  '<  Supplement 
to  the  Reports  of  Vesey,  Senior,"  pp.  205-209,  gives  the  agree- 
ment between  the  parties,  and  observes :   "  It  appears  rather  sin- 
gular that  Lord  Ilurdwicke  should  have  said  so  much  as  is  re- 
ported on  the  subject  of  the  contractors  being  partners,  since  the 
agreement  between  them  on  the  inception  of  the  undertaking  nega- 
tives such  a  supposition  as  strongly  as  words  could  make  it,  and 
since  this  very  argument  is  pressed  by  the  defendant's  counsel, 
towards  the  top  of  page  498."     Lord  Hardwicke  might  have  stated 
the  proposition  in  too  broad  terms,  he  might  have  erred  in  apply- 
ing it  to  the  circumstances  before  him,  but  the  principle  itself  is 
clear,  that  the  several  owners  of  a  ship  may  stand  to  each  other  in 
the  relation  of  partners,  the  ship  being  the  subject  of  the  partner- 
ship.    In  the  case  of  Exparte  Young,  2  Ves.  &  Beames'  R.  242, 
a  petition  was  presented  by  part-owners  of  a  ship,  contending  that, 
though  tenants  in  common,  they  were  to  be  considered  as  joint 
owners,  and  upon  bankruptcy,  the  distribution  was  to  be   as  of 
joint  property,  to  be  applied  first  to  the  joint  debts,  according  to 
Doddington  v.  Ilallett,  especially  as  the  bankrupts  had  been  in- 
trusted as  the  managing  owners.     Lord  Eldon  began  as  usual  with 
doubting.     He  thought  it  would  be  a  very  strong  act  for  him,  by 
an  order  in  bankruptcy,  from  which  there  was  no  appeal,  to  reverse 
a  decree  made  by  Lord  Hardwicke  in  a  cause.     "  From  a  manu- 
script note,  I  know  it  was  his  most  solemn  and  deliberate  opinion, 
after  great  consideration,  that  the  contrary  could  not  be  maintained ; 
and  there  is  no  decision  in  equity  contradicting  that."     But  after 
a  liberal  indulgence  of  his  doubts,  his  lordship,  at  a  subsequent 
day,  said,  that  after  great  consideration,  he  must  decide  against 
the  case  of  Doddington  v.  Ilallett.     The  opinion  of  Lord  Hard- 
wicke was  followed  by  the  N.  Y.  Court  of  Appeals  in  Mumford  v. 
Nicoll,  20  John.  Gil,  and  by  Chancellor  Do  Saussurc  in  the  case 


OF    PART-0"U'NERS.  359 

sea,  not  to  lie  by  the  walls.''^  Hence,  where  part- 
owners  have  entered  into  no  express  agreement  by 
which  the  employment  of  the  vessel  is  to  be  con- 
trolled, the  law  in  favor  of  commerce  will  interpose, 
and  compel  obstinate  and  dissenting  part-owners,  to 
yield  the  j)roperty,  to  be  employed  by  the  majority 
in  value,  "  upon  any  probable  design." 

366.  The  jurisdiction  of  Courts  of  Admiralty  in 
cases  of  part-owners,  having  unequal  interests  and 
shares,  is  not,  and  never  has  been  applied  to  direct  a 
sale,  upon  any  dispute  between  them  as  to  the  trade 
and  navigation  of  a  ship  engaged  in  maritime  voy- 
ages, properly  so  called.  The  majority  of  the  owners 
have  a  right  to  employ  the  ship  in  such  voyages  as 
they  may  please  ;  giving  a  stipulation  to  the  dissent- 
ing owners  for  the  safe  return  of  the  ship ;  if  the 
latter,  upon  a  proper  libel  filed  in  the  Admiralty, 
require  it.  And  the  minority  of  the  owners  may 
employ  the  ship  in  the  like  manner,  if  the  majority 
lecline  to  employ  her  at  all.  If  the  minority  hap- 
}en  to  have  possession  of  the  ship,  and  refuse  to  em- 
ploy it,  the  majority  may,  upon  a  warrant  to  arrest 
tie  ship,  obtain  possession  of  it,  and  send  it  to  sea, 
u:)on  giving  the  customary  security  for  the  safe  re- 
tiru  of  the  ship.^ 

ofScabrook  v.  Ilosc,  2  Hill's  (S.  C.)  Ch.  R.  553;  1  Story,  Eq. 
Juis.,  S.  400;  Iloxicr  v.  Carr,  1  Sum.  173  ;  4  Maule  &  Sclwyn, 
451. 

Molloy,  B.  2,  ch.  1. 

"The  Stcrimhoat  Orleans  v.  Phoebus,  11  Peters'  II.  175;  The 
Ap41o,  1  llagg.  300,  312;  The  Petrel,  3  Ilagg.  Adm.  11.200. 
Sui?  in  the  Admiralfy  touching  property  in  ships,  arc  of  two 
kin'9  :  one,  called  pciitort/  suits,  in  which  the  mere  title  to  the 


300  THE   LAW  OF   siiirriNG. 

3G7.  When  the  part-owners  are  equally  divided  in 
opinion  upon  the  question  whether  the  ship  shall  be 
employed  in  any  voyage  or  adventure  whatsoever, 
the  law,  looking  to  the  considerations  of  commercial 
policy  already  mentioned,  gives  effect,  through  the 
like  Admiralty  process,  and  upon  the  like  condition, 
to  the  will  of  those  who  are  in  favor  of  her  employ- 
property  is  litigated  and  sought  to  be  enforced,  independently  of 
any  possession,  which  has  previously  accompanied  or  sanctioned 
that  title;  the  other,  called  possessory  suits,  which  seek  to  restore 
to  the  owner  the  possession  of  which  he  had  been  unjustly  de- 
prived, when  that  possession  has  followed  a  legal  title,  or  as  it  is 
sometimes  phrased,  when  there  has  been  a  possession  under  a 
claim  of  title  with  a  constat  of  property.     The  distinction  between 
petitory  and  possessory  suits,  admitted  into  the  practice  of  the  Bri- 
tish Admiralty,  and  permitting  it  to  exercise  jurisdiction  in  cases 
under  the  latter  denomination,  but  excluding  it  in  cases  under  the 
former,  is  unknown  in  our  Admiralty  Courts.     The  Tilton,  5  Ma- 
son, 465.     See  also.  The  Aurora,  3  Rob.  133, 136 ;  The  Warrior, 
2  Dod's  R.  288 ;  The  Pitt,  1  Hagg.  R.  240.     It  is  proper  to  ob- 
serve, that  it  was  formerly  held  by  the  English  Admiralty,  and  for 
a  long  period  the  right  was  exercised,  to  examine  and  to  pronounce 
for  the  title  of  ships  on  questions  of  ownership.     It  was  not  until 
some  time  after  the  Restoration,  that  the  Courts  of  common  law 
interposed,  and  claimed  that  the  jurisdiction  belonged  exclusively 
to  them.     Since  that  time,  the  Admiralty  has  not  interfered  with 
questions  of  this  nature,  except  when  the  consideration  of  propert; 
arises  incidentally,  and  in    such  a  manner  as  is  not  disputed  be 
twecn  the  parties.      The  former  jurisdiction,  however,   is   nor 
restored  by  the  Act  of  3  and  4  Victoria,  chap.  65,  which  is  ent- 
tlcd  an  "  Act  to  improve  the  practice  and  extend  the  jurisdicti<n 
of  the  High  Court  of  Admiralty  of  England."     Section  4  of  tie 
Act  provides,  "  That  the  said  Court  of  Admiralty  shall  have  jurs- 
diction  to  decide  all  questions  as  to  the  title  to  or  ownershipof 
any  ship  or  vessel,  or  the  proceeds  thereof  remaining  in  the  rcgs- 
try,  arising  in  any  cause  of  possession,  salvage,  damage,  wages,or 
bottomry,  which  shall  be  instituted  in  the  said  Court  after  he 
passing  of  this  Act." 


OF    PART-OWNERS.  361 

ment.'  It  must  be  understood,  that  in  all  these 
cases,  where  the  ship  is  sent  to  sea,  against  the  wishes 
of  the  dissentient  part-owners,  and  upon  application 
to  a  Court  of  Admiralty,  they  bear  no  portion  of  the 
expenses  of  the  outfit,  and  are  not  entitled  to  a  share 
in  the  profits  of  the  undertaking;  but  she  sails 
wholly  at  the  charge  and  risk,  and  for  the  profit  of 
the    others.^      And  if  she  is  lost  on  the  voyage, 

1  Conkling's  Adm.  252  j  Story  on  Partnership,  §  435;  3  Kent's 
Com.  153,  156. 

«  The  Peggy,  4  Rob.  Ad.  R.  304 ;  The  Apollo,  1  Hagg.  Ad. 
R.  306,  312;  Abbott  on  Shipping,  127.  "The  law  of  this 
country,"  says  3Ir.  Abbott,  "  appears  to  possess  an  important  ad- 
vantage over  all  the  ordinances  that  have  been  cited ;  because, 
while  it  authorizes  the  majority  in  value  to  employ  the  ship  'upon 
any  probable  design,'  it  takes  care  to  secure  the  interest  of  the  dis- 
sentient minority  from  being  lost  in  the  employment  of  which 
they  disapprove.  And  for  this  purpose  it  has  been  the  practice  of 
the  Court  of  Admiralty,  from  very  remote  times,  to  take  a  stipu- 
lation from  those  who  desire  to  send  the  ship  on  a  voyage,  in  a 
sum  equal  to  the  value  of  the  shares  of  those  who  disapprove  of 
the  adventure,  cither  to  bring  back  and  restore  to  them  the  ship, 
or  to  pay  them  the  value  of  their  shares.  When  this  is  done,  the 
dissentient  part-owners  bear  no  portion  of  the  expenses  of  the  outfit, 
and  are  not  entitled  to  a  share  in  the  profits  of  the  undertaking ; 
but  she  sails  wholly  at  the  charge  and  risk,  and  for  the  profit  of 
the  others.  Tliis  security  may  be  taken  upon  a  warrant  obtained 
by  the  minority  to  arrest  the  ship.  And  it  is  incumbent  on  the 
minority  to  have  recourse  to  such  proceedings  as  the  best  means 
of  protecting  their  interest;  or,  if  they  forbear  to  do  so,  at  all 
events  they  shouhl  expressly  notify  their  dissent  to  the  others, 
and  if  possible  to  the  merchants  also,  who  frciglit  the  ship.  For 
it  has  been  decided  that  one  part-owner  cannot  recover  damages 
against  another,  by  an  action  at  law,  upon  a  cl)argo  of  fraudulently 
and  dccfitfully  sriiding  the  ship  to  foreign  parts,  where  she  was 
lost.  And  it  has  also  been  decided  in  the  Court  of  (!hancery,  tlmt 
one  part-owner  cannot  have  redress  in  equity  againist  another  for 
the  loss  of  a  ship  sent  to  sea  without  his  assent.     These  decisions 


o 


G2  THE    LAAV    OF    SUimNG. 


the  estimated  viilue  of  the  shares  of  the  dissentient 
part-owners,  must  be  paid  in  fulh  The  sums  stipu- 
lated in  the  bond  given  for  their  security,  are  the 
measure  of  the  loss  they  have  sustained.  If,  how- 
ever, it  should  be  made  to  appear,  that  the  dissen- 
tient part-owner,  actually  and  efficiently  contributed 
to  the  loss  of  the  vessel,  a  Court  of  Admiralty  will 
deem  a  forfeiture  of  the  whole  or  a  part  of  the  esti- 
mated sum,  according  to  the  nature  and  circum- 
stances of  the  transaction.' 

3G8.  If  a  vessel  be  sent  on  a  voyage  by  the  major 
interest,  and  the  minority  neither  apply  to  a  Court 
of  Admiralty  for  security,  nor  take  any  part  in  the 
voyage,  they  must  bear  their  proportion  of  the  ex- 
penses, and  are  entitled  also  to  their  proportion  of 
the  profits.  The  repairs  of  the  vessel  are  repairs 
made  for  them ;  the  supplies  are  supplies  for  them ; 
and  the  "proceeds  are  proceeds  to  be  divided  among 
them ;  for  if  it  be  true,  that  he  who  is  entitled  to  the 
profits,  must  bear  the  burden ;  it  is  equally  just  that 
he  who  bears  the  burden  should  be  entitled  to  the 
profits.2 


are  consonant  to  the  general  rule  of  law,  that  when  one  tenant  in 
common  docs  not  destroy  the  common  property,  but  only  takes  it 
out  of  the  possession  of  another,  and  carries  it  away,  no  action 
lies  against  him ;  but  if  he  destroys  the  common  property,  he  is 
liable  to  be  sued  by  his  companion."  See  also,  as  to  the  jurisdic- 
tion of  the  Admiralty  in  these  cases,  Willings  v.  Blight,  2  Peters' 
Adm.  R.  288;  2  Brown.  Cir.  and  Adm.  Law,  131;  Davies  v. 
Johnston,  4  Sims.  539 ;  2  B.  &  C.  248 ;  2  Meriv.  77. 

>  The  Apollo,  1  Ilagg.  Adm.  II.  lOG ;  Jouanneau  v.  Shannon, 
4  Louis.  R.  330. 

»  Gould  V.  Stanton,  16  Conn.  R.  12 ;  Card  v.  Hope,  2  B.  &  C. 
661.     In  the  whaling  business,  the  owners  of  the  vessel,  as  a 


OF    PART-OWNERS.  363 

369.  When  one  part-owner  of  a  vessel,  known  to 
be  so  by  the  other  owners,  did  not,  when  he  became 
a  part-owner,  comply  with  the  Acts  of  Congress,  but 
not  for  any  purpose  of  fraud  or  concealment,  and 
another  part-owner  obtained  an  enrolment  of  the 
vessel,  swearing  that  he  and  some  others  were  sole 
owners,  without  mentioning  the  name  of  the  first 
part-owner,  such  omitted  part-owner  is  entitled 
nevertheless  to  ask  for  security  from  the  other  own- 
ers, for  the  safety  of  the  vessel  on  a  voyage  not  ap- 
proved by  him.^ 

general  thing,  appoint  some  person,  usually  one  of  their  number, 
to  be  manager  of  the  concern.  This  person  orders  the  necessary 
repairs,  furnishes  the  supplies,  procures  the  seamen,  in  short,  as 
ship's  husband,  does  all  that  is  necessary  for  the  voyage,  charging 
each  shareholder  his  proportional  part;  and  upon  the  return,  after 
paying  expenses,  and  deducting  the  usual  commissions  for  his  own 
services  and  allowances,  and  paying  the  officers  and  crew  such 
proportions  as  they  stipulated  for,  divides  the  balance,  being  the 
net  proceeds,  among  the  joint  owners  of  the  vessel,  in  proportion 
to  the  number  of  shares  by  them  respectively  owned.  These 
agents,  thus  acting  for  the  whole,  become  responsible  to  those  who 
may  happen  to  be  owners.  In  this  way,  that  delay  and  those  con- 
flicts of  opinion  are  avoided,  which  would  arise  from  the  meetings 
and  consultation  of  such  a  number  of  persons  as  frequently  have 
an  interest  in  these  voyages.  This  agent  having  been  appointed 
by  a  majority  of  the  shareholders,  is  supposed  to  speak  and  act 
the  sentiments  of  the  majority ;  and  in  ordinary  circumstances, 
that  will  most  prevail.  Gould  v.  Stanton,  siij>ra.  See  Macy  v. 
De  Wolf,  :J  W.  &  M.  103. 

'  The  Lodcmia,  Crabbc's  11.  271.  'I'lie  dissentient  part-owner 
in  tliis  case  owned  one-eighth  of  the  vessel,  and  he  was  secured  in 
double  the  value  of  his  share. 

It  is  provided  by  the  oth  section  of  the  Act  of  July  29,  ISilO, 
That  the  owner  or  agent  of  the  owner  of  any  vessel  of  the  United 
States,  applying  to  a  collector  of  the  customs  for  a  register  or  en- 
rolment of  a  vessel,  shul),  in  addition  to  the  oath  now  prescribed 


364  THE     LAW    OF    SHIPPING. 

370.  As  the  law,  upon  considerations  of  national 
policy,  enables  a  majority  of  the  part-owners  to 
employ  the  ship  even  against  the  will  of  the  minority, 
so,  as  an  incident  of  that  power  of  employment  vested 
in  the  majority,  they  have  a  right  to  appoint  the 
oilicers  and  crew  of  the  ship,  and  to  displace  them 
at  their  pleasure.  But  such  a  right  carries  with  it 
a  dut}^, — the  duty  of  exercising  a  free  and  impartial 
judgment  in  the  choice  of  every  person  who  is  to  be 
intrusted  with  the  management  of  the  outfit,  and 
with  the  navigation  of  the  ship,  ut  dentur  difj7iiori. 
Any  contract,  therefore,  which  is  calculated  to  fetter 
the  judgment,  and  bind  some  of  the  part-owners  to 
concur  in  the  nomination  of  particular  persons,  at 
the  peril  of  an  action,  is  a  violation  of  that  duty. 
The  violation  of  duty  becomes  greater  and  more 
odious  if  the  contract  be  founded  on  motives  of 
peculiar  gain  and  advantage  to  the  contractor ;  for 
all  the  part-owners  ought  to  share  rateably  in  every 
profit  that  may  be  made  of  the  ship.  And  if  such 
contracts  were  allowed  by  the  law,  they  would 
directly  operate  to  discourage  all  persons  from  be- 
coming part-owners  of  ships.  The  duty,  however, 
is  owing  not  only  to  the  charterers  and  other  part- 
owners  of  a  ship,  but  also  to  all  whose  life  or  pro- 
perty may  be  embarked  in  her.  And,  hence,  a  vio- 
lation of  the  duty  is  contrary  not  only  to  the  inte- 
rest of  the  charterers  and  part-owners,  but  also  to 

by  law,  set  forth  in  the  oath  of  ownership,  the  part  or  proportion 
of  Buch  vessel  belonging  to  each  owner,  and  the  same  shall  be  in- 
serted in  the  register  of  enrolment;  and  that  all  bills  of  sale  of 
vessels  registered  or  enrolled  shall  set  forth  the  part  of  the  vessel 
owned  by  each  person  selling,  and  the  part  conveyed  to  each  per- 
son purchasing. 


OF    PART-OWNERS.  365 

another  most  important  object,  namely,  the  pro- 
tection and  safety  of  the  lives  and  property  em- 
barked on  the  sea.  All  such  contracts  are  utterly 
void.  An  agreement,  therefore,  by  two  part-owners, 
who  were  the  ship's  husbands,  with  a  third  person, 
to  sell  him  a  part  of  their  shares,  and  he  to  be 
appointed  master  (they  holding  the  majority  of 
interests),  and  they  to  be  continued  as  the  ship's 
husbands,  and  he  or  they  to  have  the  appointment 
of  his  successor,  as  master,  has  been  held  to  be 
utterly  void.^ 

371.  A  Court  of  Admiralty  will  entertain  a  suit 
to  dispossess  the  master,  although  he  may  be  a  part- 
owner.  The  dispossession  of  a  master  is  not  in  its 
nature  an  uncommon  proceeding :  all  that  is  required 
in  cases  where  the  master  is  not  an  owner,  is  that 
the  majority  of  the  proprietors  should  declare  their 
disinclination  to  continue  him  in  possession.  In  the 
case  of  a  master  and  part-owner,  something  more  is 
required  before  a  Court  of  Admiralty  will  proceed 
to  dispossess  a  person  who  is  also  a  proprietor  in  the 
vessel,  and  whose  possession,  therefore,  the  common 
law  is  upon  general  principles  inclined  to  maintain. 
It  will  require  some  special  reason  before  it  will 
interpose ;  such,  for  instance,  as  that  the  master  is 
irregular  in  his  accounts  with  his  owners.^  Mr. 
Justice  Story  lays  it  down  as  a  rule  of  the  connnon 
as  well   as   the   French   law,  that  the  majority  of 

'  Card  V.  Hopo,  2  Barn.  &  Tr.  OGl,  074,  075;  Story  on  Tart- 
ncr.sliip,  000,  007. 

'The  Sisters,  3  Rob.  Ad.  K.  213;  The  New  Draper,  4  Hob. 
287 ;  Edwards'  Ad.  K.  242. 


366  THE   LAW   OF   siiirriNG. 

owners  may  displace  the  master  at  their  pleasure, 
even  altliough  he  may  be  a  part-owner/ 

372.  lie  cites  no  authority  for  the  position  that 
the  common  law  confers  this  power  upon  the  major 
part  of  the  owners ;  and  it  may  well  be  doubted  if 
they  have  such  power.  If  the  Courts  administering 
the  maritime  law  of  the  country  refuse  to  displace  a 
master,  who  is  also  a  part-owner,  upon  the  mere 
application  of  the  majority  of  owners,  who  have  no 
ground  for  their  application  but  their  will,  inclina- 
tion, or  pleasure,  then  we  apprehend  that  they  can- 
not, of  their  own  mere  motion,  do  that  which  the 
maritime  law  will  not  permit  to  be  done  when  its 
aid  is  directly  invoked  for  that  purpose.  It  is  true, 
the  two  systems  of  law  may  differ  upon  this  subject ; 
but  we  are  aware  of  no  decision  of  any  Court  of 
common  law,  or  even  the  dictum  of  any  Judge,  that 
authorizes  us  to  suppose  that  any  such  difference 
docs  in  fact  exist. 

373.  We  have  already  seen  that  where  a  majority 

'  Story  on  Partnership,  GOG ;  Boulay  Paty,  Droit  Comm.,  tome 
i.,  tit.  3,  p.  340.  Where  a  party,  late  master,  and  claiming  to  be 
part-owner,  of  a  vessel,  prayed  for  possession,  and  also  for  security 
for  her  safe  return  from  a  voyage  projected  by  the  other  owner, 
and  the  question  of  title  depended  on  the  state  of  the  accounts 
between  the  parties,  which  could  not  conveniently  be  settled  before 
the  Court :  an  interlocutory  order  was  made,  that  the  vessel  be 
delivered  to  the  libellant,  to  proceed  on  the  projected  voyage,  on 
his  own  stipulation  for  her  return  and  submission  to  the  order  of 
the  Court,  and  on  payment  of  the  costs  accrued  at  the  date  of  the 
order,  but  the  ultimate  liability  for  those  costs  to  await  a  final 
decree.     The  North  America,  Crabbe,  420. 


OF    PART-OWNERS.  367 

of  the  part-owners  decline  to  employ  the  ship  at  all, 
the  minority,  upon  application  to  the  Admiralty, 
will  be  permitted  to  send  her  on  a  voyage,  upon  the 
usual  conditions  and  stipulations.^  And  it  has  been 
contended,  by  eminent  jurists,  that  they  had  the 
same  right  to  employ  her  when  the  majority  of  the 
part-owners  declined,  not  to  employ  her  at  all,  but 
declined  to  employ  her  at  the  particular  time  and 
upon  the  particular  adventure.  "  Many  of  the  foreign 
jurists  contend,"  says  Kent,  "that  even  the  opinion 
of  the  minority  ought  to  prevail,  if  it  be  in  favor  of 
employing  the  ship  on  some  foreign  voyage.  Eme- 
rigon,  Ricard,  Straccha,  Ruricke,  and  Cleirac,  are  of 
that  opinion.  But  Valin  has  given  a  very  elaborate 
consideration  to  the  subject,  and  he  opposes  it,  on 
grounds  that  are  solid ;  and  he  is  sustained  by  the 
provisions  of  the  old  ordinance,  and  of  the  new  code. 
Boulay  Paty  follows  the  opinion  of  Valin,  and  of  the 
codes,  and  says  that  the  contrary  doctrine  would 
enable  the  minority  to  control  the  majority,  contrary 
to  the  law  of  every  association,  and  the  plainest 
principles  of  justice."'  And  this  seems  to  be  the 
prevailing  opinion  among  learned  jurists  and  writers 
of  our  own  time.^ 

374.   But  a  mere  wanton  or  obstinate  refusal  of 
the  major  part  of  the  owners  to  employ  the  ship — a 


'  Ante,  p.  3G0. 

«  3  Kent's  Com.  I'yC);  Ord.  do  la  Murine,  liv.  ii.,  tit.  8,  art.  5; 
Valin'a  Com.,  torac  i.,  573-584;  Code  de  Commerce,  art.  220; 
Cours  de  Droit  Com.  Mar.,  tomo  i.,  339-347. 

"See  Story  on  rartncrsliip,  008;  3  Kent,  150;  Abbott  on 
Ship.,  pp.  70-70. 


3G8  THE    LAW    OF    SHIPPING. 

case  not  likely  to  occur  often — the  law  will  not 
countenance  or  permit.  It  is  a  principle  discernible 
in  all  maritime  codes,  that  every  encouragement  and 
assistance  should  be  afforded  to  those  who  are  ready 
to  give  to  their  ships  constant  employment;  and 
this,  not  only  for  the  particular  profit  of  owners,  but 
for  the  general  interests  and  prosperity  of  commerce.^ 

375.  When  the  part-owners  have  equal  interests, 
and  are  equally  divided  as  to  the  employment  of  the 
ship  upon  any  particular  voyage  or  adventure,  we 
have  various  and  conflicting  opinions  as  to  what  is 
to  be  done  in  such  a  posture  of  alDiirs.  "  In  the 
predicament  here  mentioned,"  says  Mr.  Justice  Story, 
"several  cases  may  arise  :  1.  When  the  part-owners 
are  equally  divided  as  to  the  employment  of  the  ship 
upon  any  voyage  or  adventure  whatever,  one  being 
in  favor  and  the  other  against  any  such  employment, 
upon  the  ground  that,  at  the  time,  it  will  be  either 
unprofitable,  or  very  hazardous,  under  all  the  circum- 

'  Willings  V.  Blight,  2  Peters'  Adra.  R.  292.  "If  agriculture 
be,  according  to  the  happy  allusion  of  the  great  Sully,  '  one  of 
the  breasts  from  which  the  state  must  draw  its  nourishment,' 
commerce  is  certainly  the  other.  The  earth,  the  parent  of  both, 
is  the  immediate  foundation  and  support  of  the  one,  and  ships  are 
the  moving  powers,  instruments,  and  facilities,  of  the  other.  Both 
must  be  rendered  productive  by  industry  and  ingenuity.  The 
interests  and  comforts  of  the  community  will  droop,  and  finally 
perish,  if  cither  be  permitted  to  remain  entirely  at  rest.  The 
former  will  less  ruinously  bear  neglect,  and  throw  up  spontaneous 
products ;  but  the  latter  requires  unremitted  employment,  atten- 
tion, and  enterprise,  to  insure  utility  and  profit.  A  privation  of 
freight,  the  fruit  and  crop  of  shipping,  seems,  therefore,  to  be  an 
appropriate  mulct  on  indolent,  perverse,  or  negligent  part-owners." 
Peters,  J.,  in  Willings  v.  Blight,  supra. 


OF    PART-OWXERS.  3G9 

stances ;  2.  "Where  each  part-owner  is  equally  willing 
to  have  the  shijD  employed  in  some  voyage  or  adven- 
ture, but  they  differ  as  to  the  voyage ;  or,  3.  Where 
each  part-owner  is  ready  to  take  the  whole  ship  for 
a  voyage  to  be  planned  by  himself;  but  he  will  not 
engage  wdth  the  other  in  any  voyage  whatsoever."^ 

375  a.  In  the  first  case,  it  is  the  opinion  of  learned 
writers,  and  supported  by  the  practice  of  the  English 
Admiralty,  that  the  part-owner  who  is  willing  to 
employ  the  ship  for  a  voyage,  or  adventure,  is  en- 
titled to  have  it  delivered  to  him  for  that  purpose, 
upon  giving  the  usual  security.^ 

376.  In  the  last  two  cases,  the  part-owners  present 
equal  claims  to  the  Court,  and  there  is  no  sufficient 
grounds  for  preferring  either.  Under  such  circum- 
stances, therefore,  the  general  maritime  law,  with, 
equal  wisdom  and  justice,  authorizes  a  sale  of  the 
ship,  and  divides  the  proceeds  among  the  owners 
according  to  their  respective  shares.  Judge  Hopkin- 
son,  however,  in  the  case  of  The  Seneca,^  in  a  very 
ingenious  and  imposing  opinion,  refused  to  decree  a 
sale,  on  the  a[)})lication  of  a  part-owner,  placed  in 
the  predicament  here  mentioned. 

377.  But,  on  appeal,  and  after  a  very  a])lc  and 
elaljorate  argument.  Judge  Washington  reversed  the 


•  Story  on  Partnership,  p.  009. 

"  Molloy,  I),  ii.,  ch.  1,  h.  2,  p.  308;  J  Montague  on  I'artn.  b. 
ii.,  ch.  Ij  Ahbott  on  Shipp.,  p.  75;  Story  on  Partnership,  GOO, 
610,  and  authorities  cited. 

»  1  Gilpin's  11.  10. 

24 


370  THE    LAW    OF    SUIPPING. 

sentence  of  the  District  Court,  and  decreed  a  sale  of 
the  vessel.  He  said  the  law  applicable  to  the  case 
was  not  found  in  the  practice  or  adjudications  of  the 
Admiralty  Court  of  England/  nor  in  those  great 
sources  of  maritime  jurisprudence,  the  Rhodian  law, 
and  the  laws  of  Oleron  and  Wisbury.  "  Our  atten- 
tion is,  then,  invited  to  the  civil  law,  or,  rather,  to 
the  Roman  marine  code, — another  legitimate  source 
of  general  maritime  law,  in  which  we  find  sundry 
wise  provisions  for  adjusting  disputes  between  part- 
owners  of  vessels,  from  which  the  three  following 
rules  may  be  deduced: — 1.  That  the  opinion  and 
decision  of  the  majority  in  interest  of  the  owners, 
concerning  the  employment  of  the  vessel,  is  to  govern ; 
and  therefore  they  may,  on  any  probable  design, 
freight  out  or  send  the  ship  to  sea,  though  against 
the  will  of  the  minority;  2.  But  if  the  majority 
refuse  to  employ  the  vessel,  though  they  cannot  be 
compelled  to  it  by  the  minority,  neither  can  their 
refusal  keep  the  vessel  idle,  to  the  injury  of  the 
minority,  or  to  the  public  detriment ;  and  since,  in 
such  a  case,  the  minority  can  neither  employ  her 
themselves,  nor  force  the  majority  to  do  so,  the 
vessel  may  be  valued  and  sold ;  3.  If  the  interests 
of  the  owners  be  equal,  and  they  differ  about  the 
employment  of  the  vessel,  one-half  being  in  favor  of 
employing  her,  and  the  other  opposed  to  it,  in  that 
case  the  willing  owner  may  send  her  out." 

378.  Having  traced  the  maritime  law  thus  far,  and 
shown  that  neither  of  the  foregoing  rules  applied  to 

«  Sec  Ouston  V.  Hebdcn,  1  Wils.  101 ;  The  Apollo,  1  Ilagg. 
Ad.  R.  30G. 


OF    PART-OWNERS.  371 

the  case  before  liiin,  in  wliich  there  were  no  unequal 
interests,  and  no  unwilling  owner,  but  each  party 
desirous,  and  equally  desirous,  to  employ  their  ship. 
Judge  Washington  turned  his  attention  to  the  French 
Ordonnance  de  la  Marine,  and  decided  the  cause  upon 
the  authority  of  the  5th  and  6th  articles  of  that 
code.'  There  has  been  no  other  reported  decision 
upon  this  point ;  but  the  opinion  of  Judge  Washing- 

'  See  this  case  in  18  American  Jurist,  48C.  The  following  is 
the  6th  article  of  the  code  :  "No  person  may  constrain  his  partner 
to  proceed  to  the  public  sale  of  a  ship  held  in  common,  except  the 
opinions  of  the  owners  be  equally  divided  about  the  undertaking 
of  some  voyage."  Valin's  exposition  of  this  article  is  very  satis- 
factory. In  his  first  volume,  p.  585,  he  says :  "  The  case  excepted 
in  this  article  is,  '  when  the  opinions  of  the  parties  are  equally 
dividej  in  the  undertaking  of  some  voyage,'  upon  which  we  may 
remark  that  the  question  is  not  of  two  equal  opinions,  of  which 
one  is  to  leave  the  vessel  without  any  kind  of  voyage,  and  the 
other  to  undertake  such  or  such  a  voyage,  there  being  no  doubt  in 
that  case  that  the  opinion  favorable  to  a  voyage  ought  to  prevail, 
saving  the  right  to  discuss  the  projected  voyage,  but  solely  of  the 
case  of  two  opinions,  equally  divided  upon  the  particular  entcr- 
pri.se  projected  by  one  moiety  of  the  persons  interested,  and  re- 
jected by  the  other  moiety,  whether  that  moiety  proposes  on  its 
part  another  voyage,  or  confines  itself  to  a  disapproval  of  it,  pro- 
vided, nevertheless,  that  it  gives  plausible  reasons  for  its  conduct; 
otherwise,  this  would  have  the  air  of  an  absolute  refusal  to  permit 
the  vessel  to  be  navigated,  which  justice  could  not  tolerate,  being 
contrary  to  the  object  of  the  vessel,  to  the  original  intention  of 
the  parties,  and  to  the  interests  of  commerce." 

The  juri.sdictioii  of  the  Admiralty  to  decree  a  sale  of  the  vessel, 
where  there  is  a  di.spute  between  the  part-owners,  and  fraudulent 
conduct  is  charged  again.st  one  of  them,  was  asserted  by  Judge 
Bcc,  in  the  case  of  Skrinc  v.  Sloop  Hope,  lice's  Adm.  K.  2.  Sco 
also  the  autlioritica  cited  upon  this  subject  in  Story  on  Partner- 
ship, p.  015,  G18;  3  Kent's  Cora.,  p.  154,  note  (a);  Conkliug's 
Adm.  254-257. 


372  THE    LATT    OF    SUIPPING. 

ton  has  the  support  of  the  most  eminent  authority, 
and  expresses,  I  apprehend,  the  rule  of  American  laAV.^ 

379.  The  repairs  of  a  ship,  and  necessaries  for  the 
employment  of  it,  ordered  by  one  part-owner,  are  a 
charge  upon  all  the  owners,  and,  when  ordered  in  a 
foreign  port,  constitute  a  lien  upon  the  ship.  When 
the  order  is  given  by  the  master,  the  creditor  has 
his  liabihty,  as  well  as  that  of  the  owners,  the 
master  being  considered  their  agent.'  If,  however, 
the  repairs  are  made  or  the  necessaries  furnished 
upon  the  exclusive  credit  of  the  master,  or  the  ship's 
husband,  or  of  any  other  person, — one  of  the  part- 
owners,  even, — in  that  case  the  ship-owners  are  not 
liable.  The  law  gives  a  remedy  to  the  person  making 
repairs,  or  furnishing  supplies, — an  ample  remedy,  a 
threefold  remedy ;  but,  if  he  chooses  to  waive  it,  and 
enters  into  an  express  contract,  upon  the  exclusive 
credit  of  another,  without  any  intention  of  resorting 
to  the  owners,  he  is  at  liberty  to  do  so.  And  he 
cannot  afterwards,  when  he  finds  that  the  security 
which  he  deliberately  chose  is  worthless,  resort  to 
the  original  security,  which  he  deliberately  aban- 
doned.^ 


'  Vide  Benedict's  Admiralty,  p.  40,  as  to  jurisdiction  of  Admi- 
ralty Courts  to  decree  a  sale  of  a  ship. 

=»  Muldon  V.  Whitlock,  1  Cowen,  K.  290;  Carlisle  v.  Steamer 
Eudora,  5  Louis.  11.  15;  Chapman  v.  Durant,  10  Mass.  R.  47; 
Scottin  V.  Stanley,  1  Dall.  II.  129 ;  Schermerhorn  v.  Soines,  7 
John.  R.  311. 

3  Hurscy  v.  Allen,  G  Mass.  R.  1G3 ;  James  v.  Bixby,  11  Mass. 
R.  34 ;  Cox  v.  Reid,  1  Payne  &  Carr.  R.  602 ;  Reid  v.  White, 
5  Esp.  R.  122 ;  Ex  parte  Bland,  2  Rose,  91 ;  Stewart  v.  Hall, 
2  Dow.  P.  R.  29. 

/ 


OF    PART-OTTN-ERS.  373 

380.  T7hat  circumstances  will  amount  to  giving 
exclusive  credit,  so  as  to  discharge  the  owners,  does 
not  admit  of  being  determined  by  any  rule  of  uni- 
versal application.  Generally,  however,  if  the  party 
who  gives  the  credit  knows  that  there  are  other 
part-owners,  but  charges  the  repairs  or  supplies  to 
the  part-owner  who  orders  them,  he  is  presumed  to 
give  an  exclusive  credit  to  him.  But  merely  re- 
ceiving payment  from  one  part-owner  for  his  share, 
or  charging  the  master,  or  ship's  husband,  or  other 
agent,  with  the  debt,  will  not  of  itself  amount  to 
giving  an  exclusive  credit  to  them  which  will  dis- 
charge the  owners.  Ordinarily,  all  the  part-owners 
should  be  joined  in  a  suit  by  the  common  creditor ; 
but  where  the  credit  is  given,  and  the  creditor  does 
not  know  at  the  time  that  there  are  other  part- 
owners,  he  may  sue  liim  alone  from  whom  he  re- 
ceives the  order. ^  In  this  latter  instance,  not  know- 
ing that  there  were  other  part-owners  when  he  gave 
the  credit,  he  may  join  them  all  in  the  suit,  for  they 
are  all  liable.  No  exclusive  credit  was  intended  to 
be  given ;  for  it  cannot  be  inferred,  from  any  act  or 
knowledge  of  the  party,  that  he  elected  to  give 
exclusive  credit.^ 

381.  By  the  civil  law,  the  bare  circumstance  of 
persons  being  joint  owners  of  a  l)oat,  does  not  make 
them  responsible  in  aolido  ;  l)nt  if  they  are  associated 


•  Story  on  rartncrHhip,  s.  455 ;  Abbott  on  Sliipp.,  134.  Seo 
also  Leonard  v.  Harrington,  15  John.  R.  298;  Marquand  v. 
Webb,  10  [l,id.  S«>;  Thompson  v.  Finder,  4  C.  &  P.  158. 

'  Story  on  Partnership,  h.  455;  Thomson  v.  Davenport,  9  B.  & 
C.  78. 


374  THE  hAvr  OF   snirpiNG. 

together  for  the  purpose  of  carrying  goods  and  pas- 
sengers for  freight  or  hire,  they  are  responsible 
jointly  and  severally.  And  this,  notwithstanding 
the  losses  happened  by  the  fault  of  the  master  of  the 
boat,  and  notwithstanding  some  or  all  of  the  owners 
were  absent,  and  unable  to  prevent  such  loss/  By 
the  common  law,  part-owners  are  liable  in  soUdo  for 
all  the  debts  contracted  upon  account  of  the  ship,  or 
other  common  property.  That  law  does  not,  like  the 
civil,  restrict  the  liability  of  each  part-owner  to  the 
payment  of  his  own  share  or  proportion  of  the  com- 
mon expenditure,  when  there  is  no  express  agree- 
ment to  be  bound  in  soUdo.  It  regards  them  as 
standing  to  each  other  as  qiiasl  partners,  accountable 
for  the  excess  which  one  should  have  advanced  or 
paid  beyond  the  other ;  or  as  tenants  in  common  of 
a  chattel,  entitled  to  a  remedy  for  any  money  ex- 
pended on  the  common  property  beyond  the  due 
proportion.^ 

382.  When  repairs  and  supplies  are  ordered  by  one 
part-owner,  and  he  gives  to  the  creditor  therefor,  his 
negotiable  promissory  note,  the  other  part-owners 
are  not  thereby  discharged,  unless  it  was  intended 
as  an  absolute  payment  of  the  debt.  Because  by  the 
common  law,  wliich  is  the  law  in  this  particular  of 
all  the  vStates  of  the  Union,  except  Massachusetts 
and  Maine,  a  note  taken  in  payment  of  a  debt  is  or- 
dinarily but  a  conditional  payment  thereof;  that  is, 

I  David  V.  Eloi,  4  Lou.  11.  lOG ;  Burke  v.  Clarke,  11  Lou.  R. 
206,  and  authorities  therein  cited  from  the  civil  law. 

*  Gardner  v.  Cleveland,  0  Pick.  R.  334  ;  Story  on  Partnership, 
§456. 


OF    PART-OWNERS.  375 


it  is  an  absolute  payment  only  when  duly  paid.  The 
presumption,  prima  facie,  of  the  common  law  is,  that 
a  note  taken  for  a  debt  is  a  conditional  payment 
only;  but  this  presumption  may  be  rebutted  by 
proof,  that  it  was  taken  as  an  absolute  payment.  On 
the  contrary,  in  Massachusetts  and  Maine,  the  pre- 
sumption is,  prima  facie,  that  a  note  taken  for  a  debt 
is  an  absolute  payment,  but  this  presumption  may  be 
rebutted  by  proof,  that  it  was  intended  as  a  condi- 
tional payment  only.^ 

383.  If,  however,  the  creditor  should  take  a  note 
from  the  ship's  husband,  or  other  agent  of  the  part- 
owners,  and  give  a  receipt  therefor,  as  if  the  note 
were  a  discharge  of  the  debt,  and  this  enables  the 
agent  to  settle  with  his  principals,  and  receive  from 
them  a  sum  of  money  or  other  advantage,  which 
otherwise  he  would  not  have  been  able  to  obtain, 
and  the  principals  do  in  fact  settle  with  the  agent, 
they  cannot  be  afterwards  held  responsible  upon  the 
contract  of  their  agent,  if  he  fails  to  pay.  Because 
the  creditor  has  so  dealt  with  the  agent  as  to  give 
all  parties  to  understand  that  the  agent  has  dis- 
charged the  debt.^ 

'  The  Barque  Cbusan,  2  Story's  R.  455;  Peter  v.  Beverly,  10 
Peters'  507  ;  Abbott  on  Sbipp.,  p.  135,  and  note  ;  Arnold  v.  ('amp., 
12  John.  411  ;  Muldon  v.  Wbitlotk,  1  Cowon  II.  290;  lliggius 
V.  Packard,  2  Hall  (N.  Y.)  517. 

^  Wyatt  V.  The  Marquis  of  Hertford,  3  East's  R.  147 ;  Chccvcr 
V.  Smith,  15  John.  270;  Muldoti  v.  Wbitloek,  1  Cowcn  R.  290. 
"If  a  creditor  of  the  principal,"  says  Judge  Story  (Com.  on 
Agency,  §  4.33),  "settles  with  the  agent,  and  takes  a  note  or  other 
security  from  the  latter  for  the  amount,  due  by  the  principal, 
although,  as  between  the  parties,  it  i.s  intended  only  as  conditional 


37G  THE     LAW    OF    SHIPPING. 

384.  The  ship's  husband,  whom  it  is  usual  for  the 
several  part-owners  to  appoint,  is  their  agent  or  com- 
missioner. He  may  be  a  part-owner,  or  a  stranger. 
His  powers  are  by  mandate  or  written  commission 
by  the  owners,  or  by  verbal  appointment ;  the  lat- 
ter chielly  when  he  is  also  part-owner.  His  duties 
are,  1.  To  arrange  everything  for  the  outfit  and  re- 
pair of  the  ship — stores,  repairs,  furnishings;  to 
enter  mto  contracts  of  affreightment ;  to  superintend 
the  papers  of  the  ship.  2.  His  powers  do  not  ex- 
tend to  the  borrowing  of  money  ;  but  he  may  grant 
bills  for  furnishings,  stores,  repairs,  and  the  neces- 
sary arrangements,  which  will  bind  the  owners, 
although  he  may  have  received  money  wherewith 
to  pay  them.     3.  He  may  receive  freight ;  but  is  not 

payment ;  yet,  if  the  creditor  gives  a  receipt,  as  if  the  money  were 
received,  or  the  security  were  an  absolute  payment,  so  that  the 
agent  is  thereby  enabled  to  settle,  and  does  settle,  with  the  prin- 
cipal, as  if  the  debt  had  been  actually  discharged,  and  the  princi- 
pal would  otherwise  be  prejudiced,  the  debt  will  be  deemed,  as  to 
the  latter,  absolutely  discharged.  Upon  this  ground,  when  work 
was  done  for  the  principal,  and  the  amount  was  presented  to  his 
steward,  who  gave  his  own  check  on  a  banker  for  the  amount ; 
and  thereupon  the  creditor  gave  a  receipt  for  the  money  on  account 
of  the  principal;  and  upon  the  dishonor  of  the  check,  the  agent 
accepted  a  draft  for  the  amount,  payable  on  time;  it  was  held,  that 
if  the  principal  had  in  the  mean  time  settled  his  accounts  with  his 
steward,  or  had  dealt  with  him  differently  in  consequence  of  that 
receipt,  so  that  he  would  be  prejudiced  thereby,  the  principal 
would  be  discharged.  The  same  doctrine  would  apply  to  the  case 
of  a  ship's  husband,  or  a  shipmaster,  contracting  a  debt  for  sup- 
plies, or  for  repairs  of  the  ship,  where  an  exclusive  credit  is  origi- 
nally given  to  him,  or  an  absolute  payment  is  afterwards  acknow- 
ledged, by  a  receipt  upon  a  note  or  other  security  being  given  by 
such  agent  for  the  amount,  whereby  he  is  enabled  to  settle  with, 
and  to  receive  the  amount  in  credit  or  otherwise,  from  the  owners." 


OF    PART-0T7NERS.  377 

entitled  to  take  bills  instead  of  it,  giving  up  the  lien 
by  which  it  is  secured.  4.  He  has  no  power  to  in- 
sure for  the  owner's  interest  without  special  autho- 
rity. 5.  He  cannot  give  authority  to  a  law  agent 
that  will  bind  his  owners  for  expenses  of  a  lawsuit. 
6.  He  cannot  delegate  his  authority.  Such  is  the 
summary  which  Mr.  Bell,  in  his  work  entitled,  Prin- 
ciples of  the  Law  of  Scotland,^  has  given  of  the 
powers  and  duties  of  a  ship's  husband. 

'  Page  449.  "  It  is  usual,"  says  Mr.  Abbott  (Abbott  on  Shipp., 
136),  "  for  the  several  part-owners  to  appoint  a  person,  frequently 
one  of  their  own  number,  to  be  the  manager  of  their  joint  concern, 
their  general  agent  in  the  use  and  employment  of  the  vessel, 
under  the  name  of  ship's  husband.  Ilis  duties  and  powers  as  such 
are  often  defined  and  limited  by  the  terms  of  a  special  agreement 
for  that  purpose  between  him  and  his  employers,  or  co-owners. 
When  no  such  agreement  has  been  made,  he  is  to  exercise  an  im- 
partial judgment  in  the  employment  of  tradesmen  and  the  appoint- 
ment of  officers ;  and  be  careful  that  his  choice  in  the  situation  of 
a  master  be  not  biassed  by  any  private  pecuniary  transaction.  He 
is  to  see  that  the  ship  is  properly  repaired,  equipped,  and  manned 
— to  procure  freights  or  charter-parties — to  preserve  the  ship's  pa- 
pers— to  make  the  necessary  entries — adjust  freight  and  averages 
— disburse  and  receive  moneys,  and  keep  and  make  up  the  accounts 
as  between  all  parties  interested.  His  acts  for  these  purposes  arc 
considered  to  be  the  acts  of  all  the  part-owners,  who  arc  liable  on 
all  contracts  entered  into  by  him  for  the  conduct  of  their  common 
concern — the  employment  of  the  ship.  Yet,  when  a  tradesman 
brought  an  action  for  cordage  against  the  owners  of  a  ship,  and  it 
was  proved  that  he  had  taken  a  bill  of  the  managing  owner  for  the 
amount,  which  was  dishonored,  and  renewed,  and  dishonored  again, 
Lord  EUonborough  said,  'If  the  plaintiff,  dealing  with  the 
managing  owner,  has  adopted  him,  he  has  discharged  the  others. 
If  he  has  adjusted  accounts  with  liim  (in  that  footing,  the  other 
defendants  arc  entitle!  to  thr  benefit  of  it.'"  See  also,  1  Bell's 
Com.,  p.  411;  Story's  Com.  on  Agency,  §30;  Turner  v.  Uur- 
rows,  8  Wend.  II.  144,  151. 


378  TUE    LAW    OF    snirpiNG. 

385.  The  ship's  husband,  although  appointed  by 
the  owners,  and  constituted  their  agent,  with  respect 
to  the  repairs,  equipment,  management,  and  other 
concerns  of  the  ship,  has  no  authority  as  such  to  bor- 
row money  on  their  account,  or  to  insure  the  ship, 
or  to  pledge  the  shares  of  the  several  owners  for  the 
expenses  of  a  lawsuit.  Nor  is  the  power  of  a  part- 
owner  in  these  particulars,  without  an  express  or 
implied  delegation  of  authority  from  the  other  own- 
ers, more  extensive  than  the  power  of  a  ship's  hus- 
band.' Hence,  neither  a  ship's  husband,  nor  part- 
owners,  who  insure  the  interest  of  their  co-owners 
in  a  vessel  without  express  authority,  can  recover 
the  premium  paid  by  them.^  It  would  be  otherwise, 
if  the  several  owners  should  afterwards  sanction  the 
insurance,  in  which  case  the  underwriters  would  be 
bound,  notwithstanding  the  insurance  was  originally 
effected  without  authority.^ 

o8G.  The  admission  of  a  partner,  with  reference  to 
a  subject  of  copartnership,  is  binding  upon  the  firm ; 
but  this  principle  is  not  applicable  to  the  case  of  an 
admission  of  a  part-owner,  with  reference  to  a  subject 
of  copart-ownership.  Such  admission  is  not  binding 
on  his  copartner."     Neither  the  managing   owner, 

'  Bell  V.  Humphries,  2  Starkie,  345  ;  French  v.  Backhouse,  5 
Burr.  2727;  Campbell  v.  Stein,  G  Dow.  135;  Hooper  v.  Surky, 
4  Campb.  II.  67. 

2  Turner  v.  Burrows,  8  Wend.  R.  144.  See  also,  French  v. 
Backhouse,  sitj)ra ;  Bell  v.  Humphries,  2  Starkie's  R.  345 ;  Law- 
rence V.  Sebor,  2  Caines'  II.  203. 

•  Lucena  v.  Crawford,  1  Taunt.  325 ;  Iloath  v.  Thompson,  13 
East,  274 ;  Ilagedorn  v.  Olivcrson,  2  M.  &  Sel.  R.  485  j  Turner 
V.  Burrows,  supra. 

*  Jaggcrs  T.  Brunnings,  1  Stark.  14. 


OF    PART-OWNERS.  379 

nor  ship's  husband  has  any  power  to  purchase  a 
cargo  on  the  credit  of  the  owner.  To  bind  them, 
upon  any  contract,  made  by  such  agent,  beyond  the 
outfit,  care,  and  employment  of  the  vessel,  it  must 
be  shown  that  the  agent  has  a  superadded  authority 
to  make  such  contract.^ 

387.  It  is  the  prevailing  doctrine,  indeed  there  is 
no  adverse  decision  upon  this  point,  that  the  ship's 
husband,  whether  he  be  a  part-owner  or  stranger, 
has  no  hen  upon  the  ship  for  his  disbursements  and 
outfits.  We  are  unable  to  perceive  any  solid  reason 
or  substantial  grounds  of  policy,  for  the  rule  that 
deprives  him  of  this  security.  He  stands  upon  the 
same  footing  with  the  master  in  this  particular,  and 
we  have  endeavored  to  show  elsewhere,  that  by  the 
general  maritime  law,  and  upon  a  principle  of  com- 
mon justice,  the  latter  is  entitled  to  the  security  of 
the  ship  for  his  disbursements  on  account  of  the  ship. 
It  is,  therefore,  unnecessary  to  repeat  what  we  have 
already  said.  We  may  remark,  however,  that  if  the 
one  is  entitled  to  a  lien  upon  the  ship,  the  other  is 
equally  entitled,  and  upon  the  same  grounds.  If 
this  lien  is  denied  to  one,  consistency  demands  that 
it  sliould  be  denied  to  the  other. 

388.  The  law,  however,  gives  the  ship's  husband, 
if  he  is  a  part-owner,  a  lien  for  his  disbursements  and 
outfits  upon  tlie  proceeds  and  profits  of  the  voyage 
or  adventure  undertaken  upon  joint  account  and 
joint  profit,  as  a  sort  oC  partnersliip  for  the  voyage 
or  adventure.     If  he  be  a  mere  stranger,  and  has,  in 

*  Hewitt  V.  Buck,  17  Maine,  147. 


o 


so  THE    LAW    OF    SHIPPING. 


the  course  of  his  employment  as  such,  come  to  the 
possession  of  the  proceeds  of  the  voyage,  or  of  the 
ship  itself,  if  sold,  or  of  the  ship's  documents  and 
freight,  he  will  be  entitled  to  a  lien  thereon  for  his 
reimbursement  and  indemnity.  This,  however,  as 
the  law  now  stands,  is  the  bound  and  limit  of  his 
lien.^ 

389.  But  whether  a  part-owner,  in  his  character  as 
such,  has  any  lien  upon  the  shares  of  his  co-owners 
for  expenditures,  advances,  and  debts,  incurred  on 
account  of  the  ship,  as  for  repairs,  or  for  outfits  for  a 
voyage,  or  by  discharging  existing  liens  on  the  ship, 
is  a  question  of  a  different  nature  from  the  one  we 
have  been  considering, — a  question,  too,  upon  which 
great  jurists  have  differed,  both  in  England  and  this 
country,  and  with  respect  to  which  the  weight  of 
judicial  authority  is  so  nearly  divided  between  the 
opposing  scales,  that  neither  can  be  said  to  prepon- 
derate. In  England,  the  opinion  of  Lord  Ilardwicke 
is  opposed  to  the  opinion  of  Lord  Eldon,  the  latter, 
however,  ruling  the  law  in  that  country.^  In 
America,  the  doctrine  held  by  Lord  Eldon  has  the 
support  of  Chancellor  Kent  and  Judge  Hopkinson. 

'Story  on  Partnership,  §  433 ;  1  Bell's  Com.,  pp.  503-505; 
Ex  parte  Young,  2  Vcs.  &  Beam.  242 ;  Mumford  v.  Nicoll,  20 
John.  R.  GU. 

'  Doddington  v.  Hallett,  1  Ves.  497;  Overruled  by  Ex  parte 
Young,  2  Ves.  &  Beam.  242. 

'  Mumford  V.  Nicoll,  4  John.  Ch.  R.  522;  Patton  v.  The  Ran- 
dolph, 1  Gilpin,  457,  460.  Chancellor  Kent,  in  Nicoll  v.  Mum- 
ford, supra,  referring  to  Doddington  v.  Hallett,  supra,  said,  ''I 
dare  cot  follow  a  case  which  has  never  had  effect,  and  has  been  so 
authoritatively  exploded."     (See  Ex  parte  Young,  2  Ves.  &  Beam. 


OF    PART-OTTNERS.  381 

But  it  was  deliberately  overthrown  by  the  New  York 
Court  of  Appeals/  and  the  opposite  doctrine  was  fol- 
lowed by  Chancellor  De  Saussure,  in  the  case  of  Sea- 
brook  V.  Rose/  who  considered  the  decisions  of  the 
American  Courts,  in  analogous  cases,  as  entirely  sub- 
versive of  the  equity  doctrine  prevalent  in  England. 

242;  Ex  parte  Harrison,  2  Kose's  Cases  in  Bankruptcy,  76;  Ex 
parte  Gibson,  1  Montagu  on  Partnership,  102,  note;  and  Ex  parte 
Parry,  5  Vcsey,  575.)  ''The  late  cases  whicli  have  been  referred 
to,  are  in  point  against  the  allowance  of  any  partnership  claim,  or 
taking  an  account  on  the  foot  of  any  partnership  in  the  vessel." 
In  Patton  v.  The  Randolph,  it  was  suggested  by  the  counsel  of  the 
libellants,  that  a  joint  owner  has  a  lien  on  the  share  of  his  co- 
owner  of  a  vessel  for  a  balance  which  may  be  due  him.  "  Opinions," 
said  Judge  Ilopkinson,  '^  have  differed  on  this  point,  and  it  ap- 
pears to  me  that  the  better  opinion  is  against  this  doctrine.  I 
should  be  disposed  to  follow  the  opinion  of  Lord  Eldon  in  the  case 
of  Young  Ex  parte  (supra'),  as  Chancellor  Kent  did  on  this  ques- 
tion in  the  case  of  JMumford  v.  Nicoll,  although  a  majority  of  the 
Judges  in  the  New  York  Court  of  Appeals  seemed  inclined  to  sup- 
port the  opinion  of  Lord  Ilardwicke,  in  the  case  of  Doddington  v. 
Hallett,  which  was  in  favor  of  the  lien."  Judge  Ilopkinson  was 
also  of  the  opinion  that  the  Admiralty  had  no  jurisdiction  to  en- 
force such  a  lien,  even  upon  the  supposition  that  it  existed. 

'  Mumford  v.  Nicoll,  20  John.  II.  Oil. 

•  2  Hill's  Ch.  II.  553.  Upon  appeal,  the  Court  of  Appeals  did 
not  deem  it  necessary  to  give  an  opinion  upon  the  point  discussed 
by  Chancellor  Dc  Saussurc.  "  The  question  is  not  really,"  said 
Chancellor  Johnston,  in  delivering  the  opinion  of  the  Court,  "as 
it  has  often  been  conceived  to  be,  whether  a  ship  may  be  the  sub- 
ject of  partnership;  for  no  doubt  any  species  of  property  wliatcvcr 
may  be  held  in  partncrHhip.  But  the  question  is,  whether  a  ship, 
owned  in  distinct  shares,  and  employed  in  trade,  is,  as  between  the 
owners,  partnership  property,  or  liable  to  be  so  regarded  by  credi- 
tors, beyond  certain  specified  limits."  See  also  Hewitt  v.  Sturdc- 
vant,  4  B.  Monroe,  458-9  ;  Lamb  v.  Duraut,  12  Mass.  64;  3  Kent, 
38;  11  Mass.  400;  2  Mumford,  387. 


o 


82  THE    LAW    OF    SniPPING. 


390.  Whatever  coiillict  there  may  be  in  the  cases 
with  respect  to  the  precise  point  in  question,  it  seems 
to  be  generally  admitted  that  there  may  be  a  special 
partnership  in  a  ship,  as  well  as  in  the  cargo,  in  re- 
gard to  a  particular  voyage  or  adventure.  And 
hence,  the  repairs,  outfits,  and  other  expenses,  in- 
curred to  accomplish  the  enterprise,  are  deemed  to 
be  made  on  joint  account,  and  intended  to  be  go- 
verned, as  to  rights  and  liens,  by  the  rules  of  strict 
partnerships.^ 

391.  The  ordinary  remedy  for  part-owners  to  ob- 
tain an  adjustment  of  the  ship's  accounts  among 
themselves  is  a  suit  in  a  Court  of  Equity.     It  was 
held  by  Lord  Stowell  that  a  copartner  could  not  ori- 
ginate a  suit  for  accounts  in  the  Admiralty,^  and  that 
the  Admiralty  would  not  hang  jurisdiction  on  such 
accounts,  "  upon  the  peg  of  a  stipulation,"  taken  by 
a  dissentient  part-owner,  as  a  remedy  for  the  loss  of 
the  ship.     I  am  not  aware  that  the  question  has  ever 
been  decided  in  this  country.     But  I  apprehend,  that 
our  Courts  of  Admiralty,  possessed  as  they  are  with 
general  equity  powers,  would  have  ample  jurisdiction, 
in  a  case  of  that  nature.     Indeed,  Lord  Stowell  did 
not  deny  that  the  language  of  the  connnission  or  pa- 
tent of  the  Judge  of  Admiralty,  would  countenance 
his  taking  jurisdiction  to  enforce  an  adjustment  of 
accounts  among  part-owners.     But  in  declining  to 
exercise  the  jurisdiction,  he  relied  upon  the  fact  that 
it  never  had  been  exercised,  and  that  the  "  active 

1  3  Kent,  40,  155  ;  Story  on  Partnership,  §  444.     See  the  cases 
in  4  Pick.  450,  and  6  Pick.  46. 
«  The  Apollo,  1  Hagg.  R.  306. 


OF     PART-OWNERS.  383 

jurisdiction  of  the  Court  stood  in  need  of  the  support 
of  continued  exercise  and  usage." 

392.  When  a  contract  is  made  with  two  or  more 
jDcrsons,  and  one  only  sues,  the  defendant  may  have 
the  advantage  of  it  on  the  general  issue,  without 
pleading  it ;  a  fortiori  if  it  appears  from  the  plain- 
tiff's own  showing  that  the  contract  was  made  with 
himself  and  others  not  named,  nor  any  legal  reason 
assigned  for  not  naming  them ;  because  it  appears 
that  no  such  contract  was  made  with  the  plaintiff  as 
he  has  declared  on.  But  the  several  part-owners  of 
a  ship  make  in  law  but  one  person.  Hence,  if  an 
injury  Ije  done  the  common  property,  all  the  part- 
owners  ought  to  join  in  an  action  to  recover  damages 
for  that  injury.  And  this  to  prevent  the  defendant 
from  being  harassed  by  a  multiplicity  of  suits.  As 
the  rule  is  estabhshed  for  the  benefit  and  ease  of  the 
wrongdoer,  he  may  waive  it  by  not  pleading  in 
abatement. 

393.  It  is  well  settled  that  he  cannot  take  advan- 
tage of  the  irregularity  under  the  general  issue. 
And  if  he  does  not  avail  himself  of  the  advantage 
which  the  law  gives  him,  by  plea  in  abatement  to 
the  first  suit,  he  is  estopped  from  taking  the  excep- 
tion in  a])atement,  if  afterwards  another  part-owner 
sues  for  his  own  interest.  The  distinction  is  this : 
in  actions  by  part-owners  arising  ex  contractu,  if  all 
the  part-owners  do  not  join,  the  defendant  may  avail 
himself  of  the  objection  by  evidence  at  tlic  trial,  and 
without  plea  in  abatement.     But  in  actions  arising 


o 


84  THE    LAW    OF    SHIPPING. 


cx  delicto,  the  non-joinder  must  be  pleaded  in  abate- 
ment at  the  very  beginning  of  the  cause.' 

I  Hart  V.  Fitzgerald,  2  Mass.  R.  511 ;  Thompson  v.  Hoskins, 
11  Mass.  R.  419;  Addison  v.  Overcnd,  6  T.  R.  7G;  Rice  v. 
Shute,  5  Burr.  2G11;  Bloxain  v.  Hubbard,  5  East,  R.  407; 
Abbott  on  Shipping,  140.  The  distinction  stated  in  the  text  be- 
tween actions  for  tort  and  on  contract,  Mr.  Justice  Story  says,  is 
not  very  easy  to  establish  upon  any  general  reasoning.  "  It  seems, 
however,"  he  observes,  "  to  proceed  upon  this  ground,  that,  in 
cases  of  tort,  the  tort  is  treated  as  joint  and  several;  whereas,  in 
cases  of  contract,  the  contract  is  treated  as  an  entirety,  and  as 
being  incapable  of  separation  as  to  the  plaintiffs.  And  yet  a  dif- 
ferent rule  prevails,  even  in  cases  of  contract,  as  to  the  parties 
who  are  defendants  in  the  suit;  for,  in  the  latter  cases,  the  objec- 
tion of  the  non-joinder  of  all  the  proper  contracting  parties  to  the 
contract  as  defendants  can  be  taken  advantage  of  (as  in  the  case  of 
torts)  by  a  plea  in  abatement  only,  and  not  upon  the  trial  of  the 
merits."  Story  on  Partnership,  s.  454.  See  also  Robinson  v.  Gush- 
ing, 2  Fairf.  480,  where  it  was  held,  that  one  of  two  or  more  joint 
owners  of  a  vessel  cannot  maintain  an  action  in  his  name  alone 
for  freight,  though  he  be  also  master.  Converse  v.  Symes,  10 
Mass.  377 ;  Barn  v.  Morris,  3  Caines'  R.  54 ;  Jordan  v.  Wilkins, 
2  Wash.  C.  C.  R.  482.  "  The  necessity,"  says  Lord  Tenterden, 
*'of  all  the  part-owners  joining  as  plaintiffs  in  actions  for  the 
freight  of  goods  conveyed  in  a  general  ship,  is  founded  upon  the 
consideration  that  all  of  them  are  partners  with  respect  to  the 
concerns  of  the  ship;  and  upon  this  consideration  Lord  Chancellor 
Eldon,  in  a  case  of  bankruptcy,  wherein  it  appeared  that  the  owners 
of  a  ship,  upon  a  settlement  of  accounts  with  the  master,  who  had 
become  a  bankrupt,  were  indebted  to  him,  and  that,  on  the  other 
hand,  he  also  was  indebted  to  some  of  them  severally  upon  sepa- 
rate and  distinct  concerns,  refused  to  allow  the  latter  to  set  off 
their  respective  demands  against  the  claim  of  his  assignees  for 
their  shares  of  the  general  debt.  And  although  the  share  of  each 
part-owner  be  his  separate  property,  yet,  when  A.,  B.,  and  C.,  were 
owners  of  a  vessel,  and  B.  and  C.  employed  D.  to  sell  it  for  them, 
which  he  did,  and  paid  over  their  proportion  of  the  purchase-money 
to  B.  and  C,  but  refused  to  pay  A.  his  proportion  of  the  proceeds 


OF     PART-OWNERS.  385 

394.  In  an  action  ex  contractu  against  part-owners, 
the  non-joinder  of  one  or  more  must  be  pleaded  by 
the  part-owners  sued  in  abatement.  If  they  neglect 
to  plead  in  abatement  that  others  ought  to  be  im- 
pleaded, this  is  a  waiver  of  their  right;  and  they 
cannot  afterwards  avail  themselves  of  this  variance, 
either  on  the  general  issue  or  in  arrest  of  judgment, 
if  the  fact  becomes  apparent  upon  the  record.  Their 
remedy  is  against  the  other  part-owners,  for  contri- 
bution.' If,  however,  persons  are  joined  in  the 
action  who  ne\er  contracted,  or  were  not  bound  by 
the  contract  made  with  others,  this  goes  to  the  foun- 
dation of  the  suit,  and  is  fatal  to  it  upon  the  merits, 
for  it  is  a  variance  in  substance.^ 

395.  In  actions  against  partrowners  ex  delicto,  as 
the  party  injured  has  his  election  to  sue  all  or  any 
of  them,  and  upon  the  ground  that  tort  is,  in  its 
nature,  a  separate  act  of  each  individual,  it  follows 

of  the  sale  of  the  vessel,  and  A.  alone  sued  him  for  the  amount,  it 
was  held  he  could  not  recover.  For  here  was  a  joint  contract;  and 
persons  having  separate  interests  in  a  ship  may  jointly  agree  to 
authorize  another  to  sell  the  entirety  for  them.  But  if  several 
part-owners  allow  one  of  their  number  to  deal  with  their  joint  pro- 
perty as  his  own,  and  he  lend  the  i)rocceds  of  it,  and  receive  credit 
for  them  in  account  in  his  own  name,  although  the  property  was 
joint,  his  contract  with  the  borrower  may  have  been  separate; 
and  they  must  show  that  it  was  not  so,  if  they  would  sue  upon  it." 
Abbott  on  .Shipping,  110. 

»  Converse  v.  Symmcs,  10  ."Mass.  11.  377;  Robertson  v.  Smith, 
18  John.  II.  a:)'.))  Dorcmus  v.  Sclden,  19  John.  U.  l!l;5;  Zicle  v. 
Executor.s  of  ('an)pbell,  *2  John.  Cas.  v]82. 

«  Livingston's  K.v'rs  v.  Trcmpcr,  11  John.  K.  101  ;  Jones  v. 
Wilkins,  2  Wash.  C.  C.  K.  482;  Tone  v.  Goodrich,  2  John.  R. 
213. 

25 


386  THE    LAW    OF    SHIPPING. 

that  the  part-owner  sued  cannot  plead  the  non-joinder 
of  the  otliers  in  abatement  or  in  bar.'  The  doctrine 
is  well  established  in  this  country ;  but  in  England 
it  has  been  much  questioned,  and  the  decisions  are 
conllicting.^ 

39G.  "Part-owners  of  ships,"  says  Mr.  Justice 
Story,  "  are,  without  question,  all  responsible  at  the 
common  law,  severally,  as  well  as  jointly,  in  solido, 
for  all  torts  personally  committed  or  authorized  by 
them,  or  occasioned  to  third  persons  by  the  negli- 
gence of  one  or  more,  or  all,  of  them,  or  by  that  of 
the  master  of  the  ship,  or  ship's  husband,  or  other 
agent  thereof;  but  not  for  the  wilful  or  malicious 
acts  of  the  latter.  The  reason  for  this  distinction 
between  negligent  and  wilful  or  malicious  acts  is, 
that  neither  the  master  nor  ship's  husband,  nor  other 
agent,  in  doing  such  wilful  or  malicious  acts,  can 
properly  be  deemed  to  be  acting  within  the  scope  of 
the  authority  confided  to  him  by  the  owners,  in  the 
management  of  the  ship  or  its  concerns ;  but  cases  of 
negligence  may,  and  ordinarily  do,  arise  in  the  very 
course  of  such  management.  The  doctrine  is  clearly 
illustrated  in  the  common  case  of  a  coUision,  or  run- 
ning down  of  ships  on  the  high  seas,  or  in  port, 
whereby  damage  or  loss  is  incurred.  If  the  tort  be 
by  the  wilful  or  malicious  act  or  design  of  the  master, 
or  any  other  officer  or  agent  of  the  ship,  the  owners 


1  Low  V.  Mumford,  14  John.  R.  420;  PaUeu  v.  Gurney,  17 
Mass.  R.  182. 

2  Govett  V.  Radnidge,  3  East,  52 ;  Powell  v.  Sayton,  2  New 
Rep.  3G5 ;  Max  v.  Roberts,  2  New  Rep.  450 ;  Same  v.  Same,  ia 
Error,  12  East,  89 ;  Weal  v.  King,  12  East,  R.  452. 


OF    PART-OWNERS.  387 

are  not  liable  therefor,  but  the  party  only  who  com- 
mits the  tort.  But  if  it  be  by  the  negligence  of  the 
master,  or  any  other  officer  or  agent,  then  the  owners 
are  liable  therefor  in  solido,  jointly  and  severally. 
On  the  other  hand,  if  a  tort  be  committed  by  one 
part-owner  of  a  ship,  who  is  not  employed  by  the 
others  about  the  concerns  of  the  ship,  or  authorized 
to  act  for  them,  but  he  is  acting  solely,  suo  jure,  as 
part-owner,  the  other  part-owners  will  not  ordinarily 
be  liable  therefor,  whether  the  act  be  wilful  or  mali- 
cious, or  merely  negligent,  for  the  very  reason  that 
he  is  not  intrusted  by  them  with  the  management 
or  concerns  of  the  ship. 


"1 


397.  A  tradesman  who  has  repaired  a  ship,  and 
taken  from  some  of  the  part-owners  sums  equivalent 
to  their  shares,  has  nevertheless  a  claim  upon  them 
for  the  residue,  for  which  they  remain  responsible, 
if  not  paid  by  the  others,  unless  at  the  time  of  the 
payment  the  tradesman  specially  agreed  to  discharge 
them  from  all  further  demand,  upon  some  good  con- 
sideration inducing  him  to  do  so.^  We  have  else- 
where seen^  that,  if  the  credit,  at  the  time  the  repairs 
or  supplies  were  ordered,  was  given  to  the  ship's  hus- 


*  Story  on  Partnership,  s.  458. 

«  Abbott  on  Shipping,  p.  149. 

'Ante,  p.  380;  Reed  v.  White,  5  Esp.  122.  This  was  an 
action  for  cordage  sold,  against  the  defendant,  as  owner  of  the  ship 
Princess  Mary.  Tlio  dcfcmhint,  Wliite,  was  the  niaiiai^ing  owner 
or  ship's  liushand.  The  i>hiinti(r  took  White's  bill  for  the  amount, 
which  was  dishonored,  and  renewed,  and  again  dishonored.  For 
the  other  defendants,  it  was  insisted  that  the  plaintiff  liad  <li3- 
charged  the  other  owners,  who,  in  ignorance  of  this  mode  of  deal- 
ing between  the  plaintiff  and  White,  had  suffered  him  to  receive 


388  THE     LAW    OF    SHIPPING. 

band,  or  other  agent,  ordering  them ;  or  if  such  re- 
ceipt or  acknowledgment  was  given  by  him,  so  as  to 
enable  the  ship's  husband  or  other  agent  to  settle 
with  the  part-owners,  and  upon  the  basis  of  having 
paid  for  the  repairs  and  supplies,  in  that  case,  they 
are  discharged,  and  the  tradesman  must  look  to  the 
party  wdio  has  received  the  credit,  either  actually  or 
in  the  eye  of  the  law. 

398.  We  may  here  add,  that  the  underwriters  upon 
the  ship,  after  abandonment  and  acceptance,  become 
owners.  The  ship  passes  into  their  hands  cum  onere, 
and  they  are  liable  for  all  necessary  repairs  and  ex- 
penses, after  the  disaster  which  occasioned  them  and 
subsequent  to  abandonment.     This  doctrine  is  ob- 

large  sums  of  the  East  India  Company  for  freight,  which  they 
would  otherwise  have  detained. 

Lord  Ellenborough. — If  the  plaintiff,  dealing  with  White 
separately,  has  adopted  him,  he  has  discharged  the  others,  and 
must  have  a  verdict  against  him  :  it  was  not  necessary  there  should 
have  been  a  receipt.  If  he  has  adjusted  accounts  with  him  on  that 
footing,  the  other  defendants  are  entitled  to  the  benefit  of  it.  The 
first  renewed  bill  is  expressed  to  be  for  cordage  found  for  the 
Princess  Mary,  and  drawn  only  on  White.  If  this  was  drawn  ou 
him,  as  for  himself,  and  as  agent  for  his  partners,  it  was  a  pro- 
longation of  time  as  to  all.  The  question  is,  whether  it  was  in- 
tended as  a  settlement  with  him  alone,  and  adopting  him  as  the 
single  debtor.  A  special  jury  of  merchants  found  for  the  defen- 
dants.    See  also  Stewart  v.  Hall,  2  Dow.  Rep.  29. 

« The  civil  law,"  says  Lord  Tenterden,  ''  differs  from  the  law 
of  England"  (i.  e.,  in  the  particular  stated  in  the  text);  "and 
while  it  gives  an  action  against  any  one  part-owner  upon  a  con- 
tract made  by  the  master  to  the  full  extent  of  the  demand,  it  holds 
each  chargeable  only  in  proportion  to  his  own  share. of  the  ship, 
in  the  case  of  contracts  made  by  the  part-owners  themselves.  By 
the  law  of  Holland,  the  several  part-owners  are,  in  all  cases, 
chargeable  only  according  to  their  respective  interests  in  the  ship." 


OF    PART-OWNERS.  389 

viously  just.  The  underwriters  are  the  parties  ulti- 
mately benefitted  bj  the  repairs.  They  are  entitled 
to  the  freight  made  after  abandonment.  And  as 
they  desire  the  benefit,  they  must  pay  the  expenses, 
without  which  the  benefit  would  not  liave  enured 
to  them.  But  it  must  be  understood  that  they  are 
not  liable  as  joint  partners,  but  only  in  proportion  to 
their  respective  shares  and  interests  in  the  ship. 
The  vessel  being  thrown  upon  the  insurers  during  a 
voyage,  they  take  it  for  the  purpose  of  diminishing 
a  loss,  and  only  with  a  view  to  sell  her  at  the  termi- 
nation of  the  voyage.  The  law  will  not  make  them 
partners  in  invUum,  nor  is  it  necessary  for  the  secu- 
rity of  third  persons  that  they  should  be  thus  re- 
garded.^ 

399.  The  authorities  concur  in  holding  that  one 
joint  owner  of  a  ship,  or  chattel,  is  not  responsible 
to  the  co-owners  for  the  careless  use  of  it.  The  other 
owners,  if  not  satisfied  to  leave  it  in  his  care,  must 
look  themselves  to  the  protection  of  their  own  pro- 
perty .^     Thus,  in  the  recent  case  of  Moody  v.  Buck," 


'  The  United  Ins.  Co.  v.  Scott,  1  John.  II.  106;  Coope  v.  Eyre, 
1  II.  Black.  :]7;  Specring  v.  Dc  Grave,  2  Vcrn.  643. 

^  Moody  V.  Burlc,  1  Sandf.  S.  C.  R.  5504  ;  Graves  v.  Sawcer  (T. 
Raym.  If));  Rtrelly  v.  Win.von,  1  Vcrn.  297  ;  Lawthropv.  Smith, 
1  Ilayw.  R.  2r,r);  Chesloy  v.  Thompson,  H  N.  II.  R.  9;  Guillctt 
V.  Dossatt,  4  Martin  (Louis.  R.)  203.  In  this  case,  it  appcareil 
that  there  were  joint  owners  of  a  shive ;  the  slave  ran  away,  and 
tiie  owner  then  in  possession  made  no  pursuit  after  him,  and 
omitted  to  notify  the  co-tenant;  the  latter  recovered.  The  civil 
law,  in  this  particular,  differing  from  the  common,  as  stated  in  the 
text.  Scf  also,  Ilewin  v.  Kat.nn,  1  Shepley,  193;  Muddo.v  v.  G^d- 
dard,  3  Ibid.  218;  Ilurd  v.  Darling,  14  Vermont,  214;  Anders 
V.  Meredith,  4  Dev.  &  Batt.  199. 

'  Supra. 


390  THE    LAW    OF    SHIPPING. 


^vllicll  was  an  action  hy  one  joint  owner  of  a  steam- 
boat, against  anotlicr  joint  owner,  for  the  destruction 
of  the  joint  property  by  the  negligence  of  the  latter, 
it  was  held,  that  a  joint  owner  or  tenant  in  common 
of  personal  property,  cannot  maintain  an  action 
against  his  co-tenant  for  negligence  in  the  use  of  it. 
The  civil  law,  however,  proceeds  upon  a  different 
principle,  and  under  the  same  circumstances,  makes 
the  co-tenant,  whose  negligence  in  the  use  of  the 
joint  property  has  injured  or  destroyed  its  value,  re- 
sponsible therefor.  The  common  law  is  essentially 
a  technical  system.  The  civil  law,  on  the  contrary, 
is  based  upon  broad  principles,  of  a  universal  charac- 
ter, and  sanctioned,  in  most  instances,  by  the  general 
sense  of  mankind.  In  this  country  and  England,  it 
has  been  too  much  the  habit  to  depreciate  the  value 
and  importance  of  the  civil  law.  But  when  we  re- 
flect how  much  indebted  our  jurisprudence  has  been 
for  the  last  century  to  that  system,  that  our  equity 
and  maritime  law  is  based  ujDon  it,  that  it  is  the 
fountain  from  whence  Lord  Mansfield  derived  those 
principles  which  enlarged  the  foundation  and  illus- 
trated the  doctrines  of  the  commercial  law  of  En- 
gland, we  shall  be  more  sparing  of  our  censures, 
and  more  liberal  of  our  praise. 


391 


CHAPTER    II. 

OF  THE  LIABILITY  OF  MORTGAGEES  OF  SHIPS. 

400.  It  is  well  settled  in  our  law  that  a  mortgagee 
of  a  vessel,  out  of  possession,  is  not  liable  for  repairs 
and  supplies.  And  it  is  equally  well  settled  that 
the  holding  of  a  conditional  bill  of  sale,  or  having  the 
mere  legal  title  to  a  vessel,  does  not  of  itself  render 
a  party  liable.  The  law  presumes  the  credit  to  be 
given  to  the  party  in  possession  acting  as  owner,  and 
as  long  as  he  remains  in  possession,  with  the  consent 
of  the  party  holding  the  legal  title,  and  manages  and 
controls  the  vessel,  and  receives  the  profits,  he  is,  for 
all  practical  purposes,  the  owner ;  especially  when 
he  is  so  treated  by  the  persons  doing  work  upon  the 
vessel.' 


*  Heskcth  v.  Stevens,  7  Barb.  Sup.  Ct.  R.  488 ;  Flanders  v. 
Merritt, :}  Id.  20]  ;  Thorn  v.  Hicks,  7  Co\ven,G97  ;  Ring  v.  Frank- 
lin, 2  Hall,  I;  Mclntyrc  v.  Scott,  8  John.  150;  Chaniplin  v. 
Butler,  18  Id.  189;  Miln  v.  Spinola,  4  Hill,  177;  Leonard  v. 
Huntington,  15  John.  289  ;  Wendover  v.  Hodgcbooni,  7  John. 
308;  Tucker  v.  Bufiington,  15  Mass.  R.  477;  James  v.  ]Jixby, 
11  Ma.s8.  R.  34;  Duff  v.  Bayard,  4  Watts  &  Sorgt.  240;  Phillips 
V.  Ledloy,  1  Wash.  (.'ir.  C.  R.  22(5 ;  Cutler  v.  Thurlo,  20  Maine, 
213;  Col.Hon  v.  IJond.sey,  G  (jreenl.  474;  Brooks  v.  Same,  17 
Pick.  441;  Henderson  v.  Mayhew,  2  Gill's  R.  393;  Jones  v. 
Blum,  2  Rich.  (S.  C.)  R.  475;  Cordray  v.  Mordccai,  Hiid.  518. 
It  was  held,  in  thi.s  latter  case,  that  where  the  mortgagee  is  sought 


392  THE   LAW   OF   SHirriNG. 

401.  The  creditor  suflers  no  detriment  from  having 
no  chiim  upon  the  mortgagee.  His  original  remedy 
remains  to  him.  He  may  proceed  against  the  mort- 
gager in  pci-donamf  or  against  the  ship  in  rem.  So 
far  as  he  is  concerned,  the  law  treats  the  mortgage 
as  if  it  had  no  existence.  When  the  mortgagee, 
however,  holds  himself  out  as  the  real  owner  by  any 
sufficient  acts,  such  as  justly  entitle  material-men 
and  tradesmen  to  regard  him  as  the  owner,  he  is 
liable  in  the  character  which  he  assumes.  What 
acts  of  ownership  will  be  sufficient  to  charge  the 
mortgagee,  must  depend  very  much  upon  the  facts  of 
each  case  as  it  arises. 

402.  It  was  thought  by  the  Court,  in  the  case  of 
Tucker  v.  Buffington,'  that  where  he  takes  an  abso- 
lute bill  of  sale,  and  representing  the  vessel  as  his 
property  in  the  custom-house,  takes  out  a  new  certi- 
ficate of  enrolment  in  his  own  name,  and  erases  the 
name  of  the  place  of  residence  of  the  former  owner, 
and  substitutes  his  own  place  of  residence,  in  such  a 
case,  that  he  is  subjected  to  all  the  liabilities  of 
owner,  notwithstanding  he  may  have  given  the 
former  owner  a  written  contract  to  reconvey  the  ves- 
sel on  the  performance  of  certain  conditions.  This, 
as  between  the  parties,  the  Court  said,  would  operate 
to  make  the  conveyance  of  the  vessel  a  mere  security, 
but  as  to  all  the  world  besides  an  unconditional  sale. 

to  be  charged  as  owner  for  repairs,  he  may  give  in  evidence  his 
private  transactions,  or  course  of  business,  in  reference  to  the  ves- 
sel, in  order  to  show  that  the  vessel  was  not  under  his  control  or 
navigated  for  his  benefit,  and  that  his  connexion  with  her  was 
that  of  agent  or  consignee. 
'  Supra. 


OF    THE    LIABILITY    OF   MORTGAGEES,    ETC.     393 


403.  And  he  was  held  not  to  be  discharged  from 
liabiHty,  from  the  circumstance  that  he  never  took 
actual  possession  of  the  vessel,  nor  received  any  of 
her  earnings,  nor  had  any  care  or  management  of 
her,  nor  any  concern  in  manning,  victualling,  or  em- 
ploying her;  nor  from  the  fact  that  the  grantors 
remained  in  possession,  directing  the  employment  of 
the  vessel,  and  receiving  her  earnings.  The  grantee 
must  submit  to  the  consequences  of  his  own  volun- 
tary acts.  A  tradesman,  it  was  observed,  who  in- 
tends to  work  on  the  credit  of  the  owners  of  the 
vessel,  has  no  means  of  conjecturing  any  one  to  be 
owner,  but  him  in  whose  name  the  vessel  is  enrolled; 
and  this  fact,  together  with  the  alteration  on  the 
stern,  as  in  this  case,  is  a  better  indication  of  the 
ownership  than  actual  possession  of  the  vessel.^ 

404.  If,  however,  in  such  a  case,  it  should  appear 
that  the  repairs  were  done  or  the  supplies  furnished 
upon  the  credit  of  the  mortgagors,  then  the  mort- 
gagee is  discharged.  When  labor  is  performed  upon 
a  ship  or  any  other  chattel,  the  presumption  natu- 
rally and  legally  arises,  that  it  was  done  for  the 
benefit  and  at  the  request  of  the  owner.  But  this 
implication  of  law  may  be  avoided  by  showing  that 
there  was  an  express  contract  for  the  work  and  the 
compensation,  or  that  the  work  was  done  upon  the 
credit  of  another  person,  without  any  intention  of 
resorting  to  the  owner.  And  if  tlie  legal  implication 
can  be  destroyed  when  there  is  absolute  ownership, 
aforliori,  it  can  be  destroyed,  when  the  party  sought 

*  Tucker  V.  Bufliiigton,  15  Mass.  R.  477.     But  sec  King  v. 
Franklin,  2  IlaH's  K.  1. 


394  THE    LAW    OF    SHIPPING. 

to  be  charged  is  but  a  mortgagee,  and  not  generally 
answerable  for  repairs.  The  true  test  of  liability  is, 
to  whom  was  the  credit  actually  given  ?' 

405.  As  the  mortgagee  of  a  ship,  although  the  re- 
gister or  enrolment  may  stand  in  his  name,  where 
he  has  not  taken  the  actual  possession  and  control, 
is  not  answerable  for  supplies  furnished  by  order  of 
the  master,  acting  under  the  orders  and  authority  of 
the  mortgagor,  it  follows  that  the  mortgagee,  in  such 
case,  is  not  answerable  for  the  wages  of  the  master.^ 

406.  In  one  case  it  was  held,  that  the  mortgagees 
of  a  ship,  who  were  the  registered  owners,  were  not 
liable  to  a  claim  for  wages  by  a  sailor,  though  they 
accrued  upon  a  voyage  which  was  prosecuted  for  the 
benefit  of  the  mortgagees,  and  the  ship's  freight  and 
earnings  during  the  voyage  were  made  over  to  them 
by  the  same  deed  which  conveyed  the  ship  as  a 
security  for  advances.  The  ground  of  decision  was, 
that  the  sailor  had  made  the  contract  on  which 
he  sued  with  the  mortgagor,  and  had  given  credit 
to  him :  he,  therefore,  was  liable  and  not  the  mort- 
gagees.^ 

407.  AVhen  the  mortgagee  has  actually  taken  pos- 

'  James  v.  Bixby,  11  Mass.  34  j  Dame  v.  Hadlock,  4  Pick.  R. 
458 ;  Brooks  v.  Bonsey,  17  lb.  441 ;  M'Intyre  v.  Scott,  8  John. 
R.  159 ;  Colson  v.  Bonsey,  G  Greenl.  474 ;  Champlin  v.  Butler, 
Fergu.son  v.  Lord,  0  N.  H.  380;  Ring  v.  Franklin,  2  Hall's  (N. 

y.)  R.  1. 

=  Cutler  V.  Thurlo,  20  Maine,  213 ;  Fisher  v.  Willing,  8  Scrg. 
&  R.  118. 

2  3Iartin  v.  Paxon,  Holt  on  Shipp.  p.  353. 


OF    THE    LIABILITY   OF   MORTGAGEES,    ETC.      395 

session,  he  then  stands  on  a  different  footing.  When 
he  is  in  possession,  and  causes  the  ship  to  be  regis- 
tered in  his  own  name,  he  is  then  regarded  as  owner, 
and  answerable  for  supplies  furnished  and  repairs 
made  upon  the  ship.^  When,  too,  there  is  an  uncon- 
ditional bill  of  sale,  the  purchaser  is  liable  for  sup- 
plies, though  he  may  never  have  taken  possession  of 
the  vessel,  and  though  neither  the  master  nor  the 
merchant  furnishing  the  supplies  had  any  knowledge 
of  the  sale.^ 

408.  It  is  competent,  however,  for  the  party  holding 
the  bill  of  sale,  absolute  though  it  be  on  its  face,  to 
prove  that  it  was  intended  as  a  mortgage,  and  if  he 
never  took  possession  under  it,  nor  by  any  other  act 
held  himself  out  as  the  actual  owner,  he  will  not  be 
liable.  The  agreement,  which  operates  as  a  defeasance, 
need  not  be  under  seal ;  nor  is  it  necessary  that  it 
should  he  made  or  executed  simultaneously  with  the 
deed,  in  order  to  give  it  validity.  If,  however,  the 
defeasance  should  be  executed  after  the  bill  of  sale, 
and  upon  an  after  agreement  and  consideration,  the 
party  would  doubtless  be  liable  for  the  repairs  and 
supplies  furnished  in  the  interval. 

409.  When  tlie  bill  of  sale  operates  as  a  mortgage, 
the  mortgagee  is  not  made  li;i])lo  by  the  simple  fact, 
that  he  registers  the  vessel  in  his  own  name  at  the 
custom-house.  The  registration  does  not  determine 
the  ownership.     A  mortgagee  may  declare  himself 

'  Miln  V.  Rpinola,  4  Hill's  R.  177. 

«  Lord  V.  F.TguHon,  0  N.  II.  R.  :]S0 ;  Tucker  v.  IJulTingtnii,  15 
Mass.  477  J  rortland  Bauk  v.  Stubbs,  G  Mass.  422. 


396  THE    LAW    OF    SHIPPING. 

the  legal  owner,  for  the  purpose  of  the^ registry  aets, 
without  ill  any  manner  altering  the  relations  exist- 
ing between  himself  and  the  mortgagor.  The  act  is 
open  to  explanation.' 

>  Ring  V.  Franklin,  1  Hall's  (N.  Y.)  R.  1 ;  Tucker  v.  Buffing- 
ton,  supra;  Weston  v.  Penniman,  1  Mason,  318.     In   King  v. 
Franklin,  the  action  was  brought  against  the  defendant  for  work 
and  labor,  and  materials  found,  &c.,  in  repairing  the  ship  Concor- 
dia, when  she  stood  in  the  name  of  the  defendant  as  ostensible 
owner,  and  the  defence  was,  that  the  defendant  was  mortgagee  out 
of  possession,  and  therefore  not  answerable  to  the  plaintifT  for  the 
repairs  done  by  him.     The  plaintiif,  to  establish  the  ownership  of 
the  defendant,  produced  and  proved  the  custom-house  register  of 
the  ship,  with  the  affirmation  of  the  defendant,  that  he  was  sole 
owner,  by  which  document  so  produced,  it  appeared  that  a  new 
register  had  been  issued  for  her  on  the  15th  of  October,  1824,  her 
previous  register,  issued  on  the  27th  of  August  next  preceding, 
being  then  surrendered,  in  consequence  of  a  change  of  property. 
The  new  register  was  issued  at  the  request  of  the  defendant,  and 
upon  his  affirmation  that  he  was  the  sole  owner  of  the  ship,  and 
she  was  thereby  registered  in  the  usual  form,  as  the  sole  property 
of  the  defendant.     The  affirmation  of  the  defendant,  when  he  ap- 
plied for  and  obtained  the  register,  was  also  produced,  by  which  it 
appeared  that  he,  on  the  same  15th  of  October,  1824,  affirmed,  in 
the  usual  form,  that  he  then  was  the  true  and  only  owner  of  the 
ship,  and  that  there  was  no  subject  or  citizen  of  any  foreign  prince 
or  state,  directly  or  indirectly,  by  way  of  trust,  confidence,  or 
otherwise,  interested  therein,  or  in  the  profits  or  issues  thereof. 
And  it  was  proved  that  no  change  had  taken  place  in  the  registry, 
intermediate  the  date  and  issuing  of  the  same  and  the  time  the 
work  was  done.     The  defendant,  on  the  other  hand,  read  in  evi- 
dence a  bill  of  sale  of  the  ship  from  N.  G.  Minturn  to  him,  bearing 
date  the  same  15th  of  October,  1824,  and  being  on  the  face  of  it 
an  absolute  transfer  of  the  ship  to  him.     He  then  called  Minturn, 
the  apparent  vendor,  to  prove  that  the  bill  of  sale,  though  absolute 
in  its  terms,  was  given  to  him,  the  defendant,  and  taken  by  him 
as  collateral  security  for  a  loan  of  six  thousand  dollars  made  by 
Franklin  &  Minturn  to  N.  G.  Minturn,  the  owner  of  the  ship. 


OF   THE   LIABILITY   OF    MORTGAGEES,    ETC.      397 


410.  The  principle  which  governs  the  decisions  is, 
that  the  quaUfied  ownership  created  by  a  mortgagee, 
or  a  defeasible  bill  of  sale,  is  not  the  cause  or  induce- 
ment of  the  credit  which  is  given  by  material-men 
or  others,  nor  will  the  law  permit  such  qualified 
ownership  to  be  a  ground  of  liability.  The  creditor, 
if  he  trusts  to  it,  must  not  look  to  the  law  for  relief. 
The  party  must  take  possession,  or  hold  himself  out 
as  the  absolute  owner,  or  he  is  not  chargeable.' 

411.  "  The  owner,  who  is  responsible,  is  the  person 

The  witness,  upon  his  voir  dire,  declaring  that  he  had  no  interest 
in  the  event  of  the  suit,  was  admitted  to  testify,  and  proved  the 
facts  here  stated.  The  absolute  bill  of  sale  was  executed  on  the 
15th  of  October,  1824,  and  the  defendant  afterwards,  on  the  29th 
of  March  following,  to  manifest  the  trust,  gave  a  written  acknow- 
ledgment as  evidence  of  the  contract. 

It  was  held,  tliat  the  defendant,  under  these  circumstances,  was 
not  liable  for  repairs  and  supplies.  See  also  Birkbcck  v.  Tucker, 
2  Hill.  121.  In  the  latter  case,  it  was  said  by  the  Court,  that 
"  the  law  was  well  settled,  that  wherever  there  is  a  loan  and  a  se- 
curity furnished  for  that  loan,  the  fact  may  be  shown  by  parol 
proof,  even  though  the  instrument  forming  the  security  be  abso- 
lute in  its  terms  and  upon  its  face.  It  becomes  a  question  of  in- 
tention entirely,  and  if  the  parties  intended  that  the  apparently 
absolute  deed  should  in  truth  be  but  conditional,  tlien  that  fact 
may  be  shown  in  any  form  of  proof  which  can  establish  it.  It  is 
not  necessary  that  the  defeasance  should  be  in  writing;  but  the 
real  object  of  the  parties  in  furniiiig  tlu;  instrument  may  be  proved 
by  parol.  The  effect  of  the  instrument  is  not  conBncd  to  the  im- 
mediate particrs,  at  all  event.s,  if  third  persons  arc  not  prejudiced 
thereby.  In  this  case,  there  is  no  pretence  that  credit  wa.s  given 
to  thi.s  ship,  in  con.sccjueuec  of  the  interest  which  was  vested  in 
Ilowland.  His  part-ownership  in  nowise  prejudiced  the  plaintiff, 
and  Ilowland  cannot  be  made  liable  from  this  cause." 

'Duff  v.  Bayard,  4  W.  &  S.  240. 


398  THE    LAAV    OF    SHIPPING. 

■who,  having  some  kind  of  claim  or  title,  has  the  con- 
trol anil  management  of  the  vessel,  and  has  the  right 
to  receive  her  freight  and  earnings.  And  the  ground 
of  this  liability  seems  to  be  the  common  maxim,  qui 
sentit  commodum  sentlre  debet  et  onus:  it  being  ob- 
viously right  and  just  that  he  who  enjoys  the  bene- 
fits of  the  vessel,  and  controls  her  operations,  who 
receives  her  gains  or  has  the  chance  of  so  doing, 
ought  to  pay  debts  incurred  for  the  fitting  out,  sup- 
pl}',  and  navigation  of  the  vessel,  which  is  to  produce 
for  him  those  earnings,  and  not  a  person  who  merely 
holds  a  right  in  her  without  the  profit  or  usufruct." 

412.  The  Admiralty  in  England,  upon  questions  of 
mortgage,  has  declined  to  entertain  jurisdiction.^ 
The  question  has  not  been  raised  in  this  country  in 
such  a  direct  form  that  it  required  to  be  determined. 
No  reported  case  contains  any  decision  upon  the 
point.  In  the  case  of  Leland  v.  The  Ship  Medora,^ 
Judge  Woodbury  observed,  that  his  impression  was 
against  the  right  of  the  Admiralty  to  take  jurisdic- 
tion of  such  cases.  By  the  Act  of  3  &  4  Victoria,^ 
the  Courts  of  Admiralty  in  England  may  now  decide 
on  the  rights  of  mortgagees  to  ships,  if  they  are  under 
arrest,  or  their  proceeds  are  in  Admiralty.  In  the 
latter  case,  I  presume  there  could  be  no  objection  to 

'  The  Neptune,  3  Hagg.  Ad.  E.  132 ;  The  Dowthorpe,  2  W. 
Rob.  80  ;  The  Highlander,  Ibid.  109;  2  Brown.  Civ.  &  Adm.  Law. 
95;  Atkinson  v.  Maling,  2  D.  &  E.  462;  3  Hagg.  402. 

^  2  Wood.  &  M.  92.  "  Ch.  05,  s.  3. 


OF   THE    LIABILITY   OF   MORTGAGEES,    ETC.      399 

our  Courts  assuming  jurisdiction,  in  the  absence  of 
any  special  authority/ 

*  See  Gardner  v.  The  New  Jersey,  1  Pet.  Adm.  227.  By  the 
Act  of  July  29,  1850,  it  is  provided,  "That  no  bill  of  sale,  mort- 
gage, hypothecation,  or  conveyance  of  any  vessel,  or  part  of  any 
vessel,  of  the  United  States,  shall  be  valid  against  any  person  other 
than  the  grantor  or  mortgagor,  his  heirs  and  devisees,  and  persons 
having  actual  notice  thereof;  unless  such  bill  of  sale,  mortgage, 
hypothecation,  or  conveyance,  be  recorded  in  the  office  of  the  col- 
lector of  the  customs,  when  such  vessel  is  registered  or  enrolled. 
The  lien  by  bottomry,  however,  created  during  the  voyage  of  the 
vessel  by  a  loan  of  money,  or  materials  necessary  to  repair  or  en- 
able such  vessel  to  prosecute  a  voyage,  does  not  lose  its  priority, 
nor  is  in  any  way  affected  by  this  act."     Sec.  1. 


400 


CHAPTER   III. 

OF  PILOTS. 

413.  A  PILOT  is  a  person  taken  on  board  at  a  particu- 
lar place,  for  the  purpose  of  conducting  a  ship  through 
a  river,  road,  or  channel,  or  from  or  into  a  port.' 
His  duty,  therefore,  is  properly  the  duty  to  navigate 
the  ship  over  and  through  his  pilotage  limits,  or  as 
it  is  commonly  called,  his  pilotage  ground.  The 
ship  must  be  capable,  in  point  of  crew,  equipments, 
and  situation,  of  being  navigated.  No  pilot  is  bound 
to  go  on  board  a  vessel  in  distress  to  render  pilot- 
service  for  mere  pilotage  reward.  If  a  pilot,  being 
told  he  would  receive  pilotage  only,  refused  to  take 
charge  of  a  vessel  in  that  condition,  he  would  be  sub- 
jected to  no  censure,  and  if  he  did  take  charge  of 
her,  he  would  be  entitled  to  a  salvage  remuneration.^ 
"  Pilotage,"  said  Dr.  Lushington,  in  the  case  of  The 
Elizabeth,^  "is  confined  to  conducting  into  port  a 

'  Abbott  on  Shipping,  2G5  ;  Hobart  v.  Drogan,  10  Peters'  R. 
108. 

=  The  Frederick,  1  W.  Rob.  R.  17 ;  The  Elizabeth,  8  Jurist, 
305 ;  The  Cumberland,  9  Jurist,  191 ;  The  Star,  14  Law  Rep. 
487  ;  Flanders'  Maritime  Law,  330. 

3  8  Jurist,  305.  If,  when  a  pilot  goes  on  board  a  vessel  to 
bring  her  into  port,  not  in  a  state  of  distress,  but  afterwards  a 
wind  arises,  and  she  is  in  danger  of  being  cast  upon  the  shore,  it 
is  the  duty  of  the  pilot  to  exert  his  utmost  labor  and  skill  to  pre- 


OF    PILOTS.  401 

vessel  in  no  state  of  alarm,  or  having  no  apprehen- 
sion of  distress  arising  from  antecedent  causes." 

414.  The  office  of  a  pilot  is  not  a  public  one,  unless 
expressly  so  constituted.  Ordinarily,  it  is  considered 
as  a  mere  private  profession,  trade,  or  calling,  which 
may  be,  and  is  in  most  instances,  subjected  to  cer- 
tain regulations  and  restraints,  by  the  interposition 
of  legislative  authoritj^  When  the  law  provides 
for  the  appointment  and  license  of  pilots,  they  ac- 
quire a  right  in  their  pursuit,  which  becomes  a 
species  of  property,  subject,  of  course,  to  all  the  re- 
strictions imposed  by  the  law,  and  liable  to  be  for- 
feited for  any  of  the  reasons  specified  by  the  law.^ 

415.  The  first  Congress  that  assembled  under  the 
Constitution,  found  existing  in  several  of  the  States, 
a  system  of  laws  for  the  regulation  of  pilots  and 
pilotages.  Tlie  Constitution  has  conferred  on  Con- 
gress the  power  "to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the 
Indian  tribes."  It  is  admitted  that  the  power  to 
regulate  commerce  includes  the  regulation  of  naviga- 

scrvc  her;  and  for  so  doing,  he  cannot  set  up  a  claim  for  compen- 
eation  as  a  salvor.  That  which  a  pilot  docs  in  the  ordinary  course 
of  his  duty,  can  never  be  made  the  foundation  of  a  claim  for  sal- 
vage; and  the  difficulty  and  exertion  being  more  or  less  in  such  a 
ca.sc,  can  make  no  difTi-rciico.  lie  takes  his  chance  for  such 
hazards,  lie  knows  he  must  be  exposed  to  them  ;  and  it  must  be 
presumed  that  his  official  compensation  is  calculated  on  the  proba- 
bility of  such  exposures.  He  cannot  be  at  the  same  time,  and  in 
the  same  act,  a  pilot  and  a  salvor.  Wlicn  he  goes  beyond  his  offi- 
cial duty,  he  becomes  a  salvor.  The  Elvira,  Gilpin's  II.  05. 
'  Low  v.  Com.  of  Pilotage,  R.  M.,  Charlton's  (Ga.)  II.  310. 

20 


402  THE     LAW    OF    SHIPPING. 

tion.  The  regulation  of  navigation  means  the  esta- 
blishment of  rules  b}^  which  it  must  be  carried  on. 
The  power  extends  to  the  persons  who  conduct  it, 
as  well  as  to  the  instruments  used/  The  Congress 
of  1789,  instead  of  proceeding  under  the  constitu- 
tional grant  to  enact  a  general  system  respecting 
pilots  and  pilotages,  simply  adopted  the  laws  of  the 
several  States,  then  existing.  They  became  by  that 
adoption,  to  every  purpose,  laws  of  Congress.  But 
the  Act  of  1789,^  not  only  adopted  the  laws  of  the 
States  found  existing  at  the  organization  of  the 
government,  but  it  went  further.  It  declared,  "  That 
all  pilots  in  the  bays,  inlets,  rivers,  harbors,  and 
ports  of  the  United  States,  shall  continue  to  be  regu- 

*  Cooley  V.  Board  of  Wardens  of  the  Port  of  Philadelpliia,  12 
How.  R.  299.  "  A  pilot,"  say  the  Court,  "  so  far  as  respects  the 
navigation  of  the  vessel  in  that  part  of  the  voyage  which  is  his 
pilotage  ground,  is  the  temporary  master  charged  with  the  safety 
of  the  vessel  and  cargo,  and  of  the  lives  of  those  on  board,  and 
intrusted  with  the  command  of  the  crew.  He  is  not  only  one  of 
the  persons  engaged  in  navigation,  but  he  occupies  a  most  impor- 
tant and  responsible  place  among  those  engaged.  And  if  Congress 
has  power  to  regulate  the  seamen  who  assist  the  pilot  in  the 
management  of  the  Tcssel,  a  power  never  denied,  we  can  perceive 
no  valid  reason  why  the  pilot  should  be  beyond  the  reach  of  the 
same  power.  It  is  true  that,  according  to  the  usages  of  modern 
commerce  on  the  ocean,  the  pilot  is  on  board  only  during  a  part 
of  the  voyage  between  ports  of  different  States,  or  between  ports 
of  the  United  States  and  foreign  countries ;  but  if  he  is  on  board 
for  such  a  purpose,  and  during  so  much  of  the  voyage  as  to  be  en- 
gaged in  navigation,  the  power  to  regulate  navigation  extends  to 
him  while  thus  engaged,  as  clearly  as  it  would  if  he  were  to  re- 
main on  board  throughout  the  whole  passage,  from  port  to  port. 
For  it  is  a  power  which  extends  to  every  part  of  the  voyage  as 
much  as  in  another  part,  or  during  the  whole  voyage." 

2  Act  of  7th  Aug.,  1789,  sec.  4. 


OF    PILOTS.  40 


o 


latecl  in  conformity  with  the  existing  laws  of  the 
States,  respective!}',  wherein  such  pilots  may  be,  or 
with  such  laws  as  the  States  may  respecthely  hereafter 
enact  for  the  purpose,  until  further  legislative  provi- 
sion shall  be  made  hy  Congress." 

416.  No  "  further  legislative  provision,"  has  been 
made  by  Congress,  and  the  question  has  arisen, 
whether  the  legislation  of  the  several  States,  upon 
the  subject  of  pilotage,  since  the  Act  of  1789,  and 
prospectively  adopted  by  it,  is  constitutional.  Or, 
in  other  words,  whether  the  power  to  regulate  com- 
merce delegated  to  Congress  by  the  Constitution,  is 
an  exclusive  power.  It  is  admitted,  that  if  the 
power  exclusively  belongs  to  Congress,  then  Congress 
cannot  authorize  the  several  States  to  exercise  it.  If 
the  States  do  exercise  it,  their  legislation  is  simply  a 
nullity, — that  is,  upon  the  supposition  that  the 
power  resides  exclusively  in  Congress.  All  Acts 
under  that  legislation  are  void  Acts.  They  bind  no 
one.  Congress  may,  however,  adopt  that  legislation, 
and  from  that  moment  it  possesses  vitality.  But 
the  adoption  of  Congress  does  not  impart  vigor  to  it, 
and  render  valid  Acts  under  it,  anterior  to  the  adop- 
tion. It  does  not  relate  back,  and  make  valid  that 
legislation  ah  initio.  It  may  be  added,  that  when 
the  legislation  of  the  States  is  adopted,  it  becomes 
the  legislation  of  (Jongress,  mid  the  States  thereafter 
have  no  more  right  or  autliority  to  modify  or  amend 
the  adopted  laws,  than  they  have  to  amend  or  mo- 
dify any  other  Acts  of  Congress, 

417.  The  question  now  arises,  whether  Congress 


404  THE    LAW    OF    SHIPPING. 

can  'pra'ipcctivehj  adopt  the  laws  which  the  several 
States  may  hereafter  enact  upon  the  subject  of  com- 
merce or  any  of  its  incidents.  If  so,  this  strange 
result  follows, — that  Congress  may  invite  the  States 
to  legislate  upon  a  subject  exclusively  within  its 
own  power  (we  are  now  assuming  this  to  be  so), 
with  the  previous  guarantee  that  its  legislation  shall 
be  sanctioned  by  Congress, — thus  doing  what  the 
Supreme  Court  of  the  United  States,  in  the  case  of 
Gibbons  v.  Ogden,'  declared  that  Congress  could  not 
do,  namely,  authorize  or  enable  a  State  to  legislate. 
If  this  is  so,  it  follows  that  all  the  laws  of  the  several 
States,  passed  since  the  Act  of  1789,  are  void,  unless 
the  States  possess  a  concurrent  power  over  the  sub- 
ject of  commerce,  or  the  laws  are  in  their  nature 
police  regulations,  which,  it  is  admitted,  the  States 
have  a  necessary  and  legitimate  power  to  enact. 

418.  The  latter  branch  of  the  alternative  does  not 
fall  within  the  scope  of  our  inquiry.  The  former 
meets  us  at  the  threshold.  The  question  is  a  simple 
one.  Have  the  States  concurrent  power  with  Con- 
gress over  commerce  and  its  incidents?  If  they 
have,  then  the  laws  of  the  States  with  respect  to 
pilots  and  pilotages  are  valid.^     "  The  grant  of  com- 


»  9  Wheat.  R.  218. 

2  In  1803,  Pennsylvania  passed  an  Act  "  to  establish  a  Board  of 
Wardens  for  the  port  of  Philadelphia,  and  for  the  regulation  of 
pilots  and  pilotages,"  &c.  One  section  of  the  Act  provides  "  That 
every  ship  or  vessel  arriving  from  or  bound  to  any  foreign  port  or 
place,  and  every  ship  or  vessel  of  the  burden  of  twenty-five  tons, 
or  more,  sailing  from  or  bound  to  any  port  not  within  the  river 
Delaware,  shall  be  obliged  to  receive  a  pilot.  And  it  shall  be  the 
duty  of  the  master  of  every  such  ship  or  vessel,  within  thirty-six 


OF    PILOTS.  405 

mercial  power  to  Congress,"  says  Mr.  Justice  Curtis, 
in  the  case  of  Cooley  v.  Board  of  Wardens,  &c., 
"  does  not  contain  any  terms  which  expressly  ex- 
clude the  States  from  exercising  an  authority  over 
its  subject-matter.  If  they  are  excluded,  it  must  be 
because  the  nature  of  the  power  thus  granted  to 

hours  next  after  the  arrival  of  such  ship  or  vessel  at  the  city  of 
Philadelphia,  to  make  report  to  the  master-warden  of  the  name  of 
such  ship  or  vessel,  her  draught  of  water,  and  the  name  of  the 
pilot  who  shall  have  conducted  her  to  the  port.  And  when  any- 
such  vessel  shall  be  outward  bound,  the  master  of  such  vessel 
shall  make  known  to  the  wardens  the  name  of  such  vessel,  and  of 
the  pilot  who  is  to  conduct  her  to  the  Capes,  and  her  draught  of 
water  at  that  time.  And  it  shall  be  the  duty  of  the  wardens  to 
enter  every  such  vessel  in  a  book  to  be  by  them  kept  for  that  pur- 
pose, without  fee  or  reward.  And  if  the  master  of  any  ship  or 
vessel  shall  neglect  to  make  such  report,  he  shall  forfeit  and  pay 
the  sum  of  sixty  dollars.  And  if  the  master  of  any  such  ship  or 
vessel  shall  refuse  or  neglect  to  take  a  pilot,  the  master,  owner,  or 
consignee  of  such  vessel  shall  forfeit  and  pay  to  the  warden  afore- 
said a  sum  equal  to  the  half-pilotage  of  such  ship  or  vessel,  to  the 
use  of  the  Society  for  the  llelief,  &c.,  to  be  recovered  as  pilotage 
in  the  manner  hereinafter  directed  :  Provided  always,  that  when 
it  shall  appear  to  the  warden  that,  in  case  of  an  inward-bound 
vessel,  a  pilot  did  not  offer  before  she  had  reached  lleedy  Island, 
or,  in  case  of  an  outward-bound  vessel,  that  a  pilot  could  not  be 
obtained  for  twenty-four  hours  after  such  vessel  was  ready  to 
depart,  the  penalty  aforesaid  for  not  having  a  pilot,  shall  not  be 
incurred."  In  affirming  the  validity  of  this  Act,  the  Supreme 
Court  of  the  United  States  (Justices  M'Lcan  and  Wayne  dissent- 
ing), in  the  ca.se  of  Cooley  v.  Board  of  Wardens,  &c.,  12  liuw. 
II.  290,  said  :  "  We  arc  of  opinion  that  this  State  law  was  enacted 
by  virtue  of  a  power  residing  in  the  State  to  legislate;  that  it  is 
not  in  conflict  with  any  law  of  Congress;  that  it  docs  not  interfere 
with  any  system  which  Congress  has  established,  by  making  regu- 
lations, or  by  intentionally  leaving  individuals  to  their  own  uiin;- 
stricted  action." 


406  THE    LAW    OF    SHIPPING. 

Congress  roquircs  that  a  similar  authority  should 
not  exist  in  the  States." 

419.  When  a  power  is  expressly  granted  to  Con- 
gress, the  presumption  is,  that  it  was  deemed  neces- 
sary that  it  should  exclusively  reside  in  Congress. 
The  Constitution  does  not  declare  that  if  time  and 
experience  demonstrate  that  the  "  nature"  of  any  of 
the  granted  powers  is  such  that  they  may  be  exer- 
cised by  the  States,  then  the  States  are  at  liberty  to 
exercise  them.  The  Constitution  cannot  intend, 
when  it  confers  on  Congress  the  power  "  to  regulate 
commerce,"  to  enable  the  States  to  exercise  it  when- 
ever Congress  does  not.  It  is  admitted  that,  when 
Congress  exercises  the  power,  the  States  cannot. 
It  then  becomes  exclusive.  But  when  Congress 
"  sleeps  upon  its  post,"  the  States  may  seize  its 
armor,  and  exercise  its  authority.  The  laws  which 
the  States  enact  during  the  somnolency  of  Congress, 
the  Supreme  Court  says,  are  valid.  They  certainly 
are,  if  enacted  within  the  admitted  sovereignty  of 
the  States,  and  must  continue  so,  notwithstanding 
they  may  conflict  with  any  subsequent  legislation  of 
Congress. 


'O' 


420.  "  Can  Congress,"  asks  Mr.  Justice  M'Lean, 
in  his  dissenting  opinion,  "  annul  the  acts  of  a  State 
passed  within  its  admitted  sovereignty  ?  No  one,  I 
suppose,  could  sustain  such  a  proposition.  State 
sovereignty  can  neither  be  enlarged  nor  diminished 
by  an  Act  of  Congress.  It  is  not  known' that  Con- 
gress has  ever  claimed  such  a  power."  Yet  the 
majority  of  the    Court,  in   the  case  of  Cooley  v. 


OF     PILOTS.  407 

Board  of  Wardens,  &c.,  assumed  that  the  State 
Laws  might  at  any  moment  be  overruled  by  the 
action  of  Congress.  We  shall  pursue  the  argument 
no  farther.  The  question,  by  the  judgment  of  the 
Supreme  Court,  is  settled.  And  it  now  must  be 
understood  that  the  laws  of  the  several  States,  for 
the  regulation  of  pilots,  "  are  enacted  by  virtue  of  a 
power  residing  in  the  States  to  legislate,"  and  are 
valid  until  Congress  interposes,  and  establishes  some 
other  system  of  regulations. 

421.  The  Admiralty  has  jurisdiction,  as  well  in 
personam  as  in  rem,  for  pilotage  services.  They 
properly  arise  under  a  maritime  contract,  and  differ 
in  no  substantial  respect  from  the  contract  for  mari- 
ners' wages.'  And  since  the  Act  of  1845,  extending 
the  jurisdiction  of  the  District  Courts  to  certain  cases 
upon  the  lakes  and  navigable  waters  connecting  the 
same,  it  is  not  necessary,  in  order  to  give  the  Admi- 
ralty jurisdiction,  that  the  pilotage  should  be  due 
for  services  performed  on,  from,  or  to  the  sea. 

422.  That  Act  declares  tliat  the  District  Courts 
shall  have,  possess,  and  exercise,  the  same  jurisdic- 
tion in  iiijitters  of  contract  and  tort,  arising  in  or 
upon  or  concerning  steamboats  and  other  vessels  of 
twent}'  tons  Ijurden  and  upwards,  enrolled  and 
licensed  for  tlie  coasting  trade,  and  at  the  time 
emi)loyed  in  business  of  commerce  and  navigation 
between  ports  and  places  in  dillerent  States  and 
territories,  aa  was  at  the  time  of  the  passage  of  the 

'  The  Anne,  1  Mason's  11.  508;  llobart  v.  Drogan,  10  Peters' 
K.  108. 


408  THE     LAW    OF     SIIIITING. 

law  possessed  and  exercised  by  the  District  Courts 
in  cases  of  like  steamboats  and  other  vessels  em- 
ployed in  navigation  and  commerce  on  the  high 
seas,  or  tide-waters  within  the  Admiralty  and  mari- 
time jurisdiction  of  the  United  States.  We  have 
elsewhere  seen  that  the  Supreme  Court  of  the  United 
States  has  affirmed  the  constitutionality  of  this  enact- 
ment.^ 

423.  Although  by  the  Pennsylvania  Act  of  24th 
February,  1820,  the  penalties  denounced  by  the  Act 
of  29th  March,  1803,  that  is,  the  half-pilotage  fees, 
are  put  upon  the  same  footing  as  the  claims  of  mate- 
rial-men, against  domestic  ships,  in  regard  to  which 
United  States  Courts  have  always  felt  themselves 
authorized  to  take  jurisdiction,  yet  Judge  Kane,  in 
the  case  of  The  Creole,'  said  he  had  not  sanctioned 
the  use  of  Admiralty  process  to  collect  them.  He 
said  that  Courts  of  Admiralty,  like  Courts  of  Equity, 
refused  their  aid  to  the  enforcement  of  penalties, 
even  such  as  are  imposed  by  law  for  a  breach  of  con- 
tract strictly  within  their  cognizance.  He  intimated, 
however,  that  he  might  hereafter  recognise  the  half- 
pilotage  lien  created  by  the  Pennsylvania  Pilot  Act, 
as  one  to  be  enforced  by  Admiralty  process,  but  he 
did  not  deem  it  necessary  to  consider  the  question  in 
the  case  before  him. 

424.  To  relieve  the  commerce  of  the  country  from 
any  embarrassment,  arising  from  the  laws  of  diffe- 


'  The  Propeller  Genesee  Chief  v.  Fitzbugh,  12  Howard's  R. 
443. 
*  Leg.  Intell.,  May  7th,  1852. 


OF    PILOTS.  409 

rent  States,  situate  upon  waters  which  are  the 
boundary  between  them,  Congress  has  provided  that 
it  shall  and  may  be  lawful  for  the  master  or  com- 
mander of  any  vessel  coming  into  or  going  out  of  any 
port,  situate  upon  waters  which  are  the  boundary 
between  two  States,  to  employ  any  pilot  duly  li- 
censed or  authorized  by  the  laws  of  either  of  the 
States  bounded  on  the  said  waters,  to  pilot  said  ves- 
sel to  or  from  said  port,  any  law,  usage,  or  custom 
to  the  contrary,  notwithstanding.^ 

425.  By  the  laws  of  most  maritime  States,  masters 
of  vessels  are  compelled  to  take  pilots  on  board.^ 
While  on  board,  the  pilot  is  considered  as  master, 
pro  hac  vice.  He  has  absolute  and  exclusive  control  of 
the  shi}).  If  the  master  is  bound  by  any  law  to  take 
a  pilot  on  board,  he,  as  well  as  the  owners,  are  ex- 
empt from  liability  for  any  damage  arising  from  the 
neglect,  defliult,  or  incompetency  of  the  pilot.^     This 

»  Act  of  March  2,  1837. 

2  Vide,  Laws  of  Oleron,  Art.  23 ;  Molloy,  B.  2,  ch.  9,  §  8  and 

§7. 

'  The  Protector,  1  W.  Rob.  Ad.  11.  45;  TLo  Christiana,  2  Hagg. 
Ad.  R.  183  ;  The  Loclilibo,  1  Eng.  Law  &  Eq.  Rep.  G51 ;  Carruthers 
V.  Sydehotliain,  4  Maul.  &  Sclw.  77;  SncU  v.  Rich,  1  John.s.  R. 
305;  Mackintosh  v.  Slado,  G  Barn.  &  Cressw.  657;  Opinion  of 
Judge  Kane  in  the  case  of  The  Creole,  The  Legal  Intelligencer  of 
May  7,  1852;  The  Marin,  1  ^V.  Rob.  R.  95.  But  see  contra, 
Busscy  V.  Donaldson,  4  J)all.  K.  20(5;  Yates  v.  Brown,  8  Pick.  23; 
The  Transit,  cited  in  the  case  of  The  Protector,  1  W.  R.  45;  The 
Neptune,  1  Dod.  R.  107.  The  ground  upon  which  the  Court  pro- 
ceeded in  YatcH  V.  Hrown,  was,  that  the  pilot  is  the  agent  of  the 
owners,  and  therefore  the  owners  arc  equally  liable  for  his  acts, 
within  the  scope  of  his  employment,  as  for  the  acta  of  the  master 
done  within  the  scope  of  his  enjployment. 


410  THE    LAW     OF     SHIPPING. 

rule  is  fonndcd  upon  considerations  of  obvious  jus- 
tice. When  the  appointment  rests  with  the  owner 
himself,  as  in  the  case  of  the  master  and  crew,  it  is 
reasonable  that  he  should  be  held  responsible  for 
their  acts,  who  are  agents  selected  by  himself;  and 
he  is  bound  to  provide  persons  of  adequate  skill,  dili- 
gence, and  sobriety. 

42G.  But  when  a  person  is  compulsorily  put  on 
board  the  vessel,  and  the  owner's  authority  is  super- 
seded by  legislative  enactment,  it  would  be  a  viola- 
tion of  all  justice  to  hold  such  owner  responsible  for 
the  skill,  sobriety,  and  caution  of  an  individual 
with  respect  to  whom  he  has  no  power  of  selection ; 
whose  (qualifications  he  has  no  opportunity  of  deciding 
upon,  but  which  are  to  be  ascertained  and  deter- 
mined by  others :  the  owner  himself  being  entirely 
debarred  from  any  possibility  of  interference.^ 

1  The  Protector,  1  W.  Eob.  Ad.  R.  45 ;  Dr.  Lushington  ;  The 
Maria,  Ibid.  95.  It  should  be  here  observed,  that  while  the  rea- 
soning of  Dr.  Lushington  in  both  of  these  cases,  and  in  the  subse- 
quent case  of  The  AgricoUi,  2  W.  Rob.  R.  10,  proceeds  upon  the 
general  principle  that  no  man  should  be  held  responsible  for  the 
acts  of  an  agent,  who  was  forced  upon  him  by  the  provisions  of 
law,  it  must,  at  the  same  time,  be  understood,  that  owners  and 
masters  are  specially  exempted  from  liability  by  the  Act  of  Par- 
liament of  G  Geo.  IV.,  c.  125,  s.  55.  However,  "  I  am  of  opinion," 
said  Dr.  Lushington,  in  the  case  of  The  Maria,  "  that  indepen- 
dently of  the  express  provisions  in  those  statutes,  the  compulsory 
taking  of  a  pilot  does,  upon  general  principles,  relieve  the  owner  from 
all  responsibility  for  his  acts.  The  principle  is  one  that  is  recognised 
by  common  sense  and  justice  all  over  the  world."  This  is  the  pro- 
vision of  G  Geo.  IV.,  "  And  be  it  further  enacted,  that  no  owner 
or  master  of  any  ship  or  vessel  shall  be  answerable  for  any  loss  or 
damage  which  shall  happen  to  any  person  or  persons  whomsoever, 


OF    PILOTS.  411 

427.  In  the  case  of  The  Girolamo/  the  accident 
did  not  arise  from  any  act  of  bad  steerage,  want  of 
knowledge  of  shoals,  or  any  incapacity  of  the  pilot, 
but  from  the  vessel  going  on  in  a  fog.  The  question 
was  raised  whether  the  master  was  not  in  pari  de- 
licto, from  not  having  interposed,  and  brought  the 
vessel  up.  "  It  seems  to  be  nearly  admitted,"  said 
Sir  John  Nicholl,  "  that  if  the  vessel  had  set  off  in 
this  fog,  blame  would  have  been  imputable  to  the 
master ;  if  so,  was  he  not  blaraable  for  going  on  in 
the  fog  ?  Had  he  not  a  right  to  resume  his  autho- 
rity ?  Did  he  not  owe  it  to  his  owners  and  other 
persons,  whose  property  might  be  damaged  by  a  col- 
lision, to  insist  on  bringing  the  vessel  up  ?  If  he 
was  in  as  much  haste  to  get  out  of  port  as  the  pilot 
was  to  finish  his  job,  are  they  not  in  imri  delicto? 
Was  not  the  master  in  duty  bound,  at  least,  to  re- 
monstrate with  the  pilot,  and  to  represent  the  dan- 
ger of  proceeding  ?  Yet  he  says  in  his  alhdavit,  he 
did  not  in  the  least  interfere.  In  this  respect,  the 
case  is,  as  far  as  I  am  aware,  new,  and  one  of  too 
much  dilllculty  to  arrive  at  any  hasty  decision  upon, 
unless  there  be  no  other  points  upon  which  the  case 
may  be  disposed  of." 

428.  The  point  thus  left  undecided  by  Sir  John 
Nicholl,  ultliuiigli  it  is  evident  that  the  leaning  and 

from  or  by  reason  or  moans  of  :iiiy  neglect,  default,  incompetency, 
or  incapacity  of  any  licensed  pilot,  acting  in  the  charge  of  any  such 
ship  or  vessel,  under  or  in  pursuance  of  any  of  the  pmvisions  ot 
this  Act,  where  nnd  no  lourj  as  such  pilot  shall  hr  dull/  qunlljird  to 
have  the  rhart/c  of  such  ship  or  vessel,  or  where  and  so  long  as  no 
duly  qualified  pilot  shall  hare  offered  to  take  charge  thcreoj. 
» '6  Ilagg.  Ad.  K.  1G9. 


412  THE    LAW    OF     SniPPING. 

bearins^  of  his  mind  was  that  the  master  would  be 
responsible,  for  not  having  interfered  under  the  cir- 
cumstances, has  recently  been  adjudicated  by  Dr. 
Lushiniiton.  in  the  case  of  the  Lochlibo/  In  that 
case,  it  was  held,  that  when  a  pilot  is  taken  on 
board,  it  is  his  duty,  and  not  that  of  the  master,  to 
determine  where,  and  whether  or  not,  the  ship  shall 
be  brought  up.  Referring  to  the  case  of  The  Giro- 
lamo,  Dr.  Lushington  proceeded  to  say : 

429.  "1  am  bound  to  tell  you  what  is  my  own 
opinion.  I  am  bound  to  tell  you,  looking  at  this 
case,  whatever  might  be  the  decision  in  the  one 
already  referred  to,  I  am  of  opinion,  that  where  a 
pilot  is  taken  on  board  at  Dungeness,  for  the  pur- 
pose of  navigating  a  vessel  to  Margate  or  Gravesend, 
or  wherever  it  may  be  within  his  pilot  grounds,  it 
does  appear  to  me  that  all  the  responsibility  attaches 
on  the  pilot  under  all  the  circumstances ;  it  is  not 
part  of  the  duty  of  the  master  to  interfere  or  deter- 
mine whether  the  vessel  ought  to  be  brought  up  at 
the  North  Foreland,  or  in  the  Downs,  or  in  Margate 
Roads ;  but  that  is  clearly  a  part  of  the  vocation  of 

»  1  Eng.  Law  &  Eq.  R.  G51.  See  also  The  Maria,  1  W.  Rob. 
110;  The  Duke  of  Manchester,  10  Jurist,  865.  It  was  held  in 
this  case  to  be  the  duty  of  the  master  to  look  after  the  pilot  where 
there  was  palpable  incompetency,  or  intoxication,  or  a  loss  of  his 
faculties ;  and  scmbh,  if  the  master  sec  that  the  pilot  is  incompe- 
tent, he  is  not  blindly  to  follow  his  orders.  In  the  case  of  U.  S. 
V.  Forbes,  Crabbe's  R.  558,  it  was  held,  that  the  pilot  is  an  officer 
of  the  ship  when  on  board  in  the  exercise  of  his  duties,  but  the 
captain  is  still  master  of  the  vessel,  and  the  pilot's  orders  are  con- 
sidered as  the  captain's.  See  also,  to  the  same  effect,  U.  S.  v. 
Lynch,  2  N.  Y.  Leg.  Obs.  51. 


OF    PILOTS.  413 

the  pilot,  and  I  cannot  consider  that  in  this  case  the 
master  was  to  blame.  Even  suppose  you  should 
consider  the  pilot  was  to  blame  for  not  having 
brought  up  the  vessel,  it  appears  to  me  it  would  be 
a  most  dangerous  doctrine,  considering  the  duty  im- 
posed upon  pilots,  and  the  local  knowledge  they  are 
supposed  to  possess,  if  I  was  to  sanction  the  hiter- 
ference  of  the  master,  in  any  way,  in  the  performance 
of  a  duty,  which  duty  they  ought  to  be  competent  to 
discharge,  and  with  respect  to  which  the  master,  in 
the  majority  of  cases,  must  be  a  very  inferior  judge 
to  the  pilot.  Of  course  I  do  not  mean  to  go  the 
extraordinary  length  of  sa3-ing,  that,  if  it  was  quite 
manifest  that  the  pilot  was  utterly  incapable,  it  would 
not  be  the  duty  of  the  master  to  interpose  for  the 
preservation  of  life  and  the  property  under  his  care; 
for  I  will  ever  bold  the  doctrine  that  it  would  be  his 
duty  in  the  extreme  case." 

430.  Interference,  as  distinguished  from  sugges- 
tion, is  the  doing  that  which  the  pilot  alone  ought 
to  have  done.^  A  hail  from  any  of  the  crew  on  the 
look-out  to  alter  the  helm,  if  such  advice  be  adopted 
by  the  pilot  as  a  proper  measure  in  his  own  judg- 
ment, will  exonerate  the  owners ;  but  it  would  be 
otherwise  if  tlie  advice  were  adopted  by  the  pilot 
untliinkingly,  and  on  the  mere  report  of  the  look- 
out.' 

431.  Wlif-n  a  vessel  is  at  sea,  and  a  pilot  puts 
off,  tlion-  is,  midcr  the  provisions  of  tlic  Pilot  Acts, 
a  compulsion  upon  the  master  to  receive  sucli  pilot, 

*  1  Eng.  Law  &  Eq.  R.  651.  "  H'i^l. 


414:  THE    LAW    OF    SHIPPING. 

if  he  be  the  first  that  presents  himself.  But  when 
vessels  are  lying  in  port  and  about  to  sail,  the  mas- 
ters and  owners  have  the  right  to  select  their  own 
pilot,  provided  he  be  duly  qualified  to  conduct  the 
vessel.  And  although  he  may  be  under  a  permanent 
engagement  to  conduct  certain  vessels  out  of  port, 
the  owners  are  not  responsible  for  accidents  occur- 
ring while  the  vessel  is  under  his  charge.  It  has 
been  contended  that  they  are  justly  liable  in  such  a 
case,  because  the  pilot  is  to  be  considered  rather  as 
a  servant,  voluntarily  engaged  by  the  owners,  than 
as  an  ordinary  pilot  taken  under  the  compulsory 
provisions  of  the  statute. 

432.  But  a  contrary  view  of  the  subject  is  taken 
by  the  Courts.  There  is  nothing  in  the  Pilot  Acts, 
no  restrictive  enactment  to  prevent  any  individual 
duly  qualified  from  accepting  or  undertaking  a  con- 
stant and  permanent  engagement.  And  it  is  con- 
sidered highly  advantageous,  not  only  to  the  owners 
of  vessels,  but  to  the  public  at  large,  that  the  same 
pilot  should  be  constantly  employed  on  board  a  ves- 
sel, inasmuch  as  he  becomes  thereby  well  acquainted 
with  the  master  and  crew,  and  is  consequently  more 
likely  to  conduct  the  vessel  amicably  and  properly.^ 

433.  It  should  be  observed,  that  when  the  pilot 
has  assumed  the  charge  of  the  ship,  the  exclusive 
command  is  his,  and  the  exclusive  duty  to  decide 
upon  the  proper  time,  place,  and  manner  in  which 
the  anchor  should  be  dropped.^   "  If  the  pilot,  then,  is 

'  The  Batavia,  2  W.  Rob.  Ad.  R.  407. 

2  The  Agricola,  2  W.  Rob.  Ad.  R.  10  ;  The  Gipsey  King,  Ibid. 
547. 


OF    PILOTS.  415 

to  decide  the  mode  of  anchoring  a  vessel,  it  seems  to 
follow  as  a  necessary  consequence,"  said  Dr.  Lushing- 
ton,  in  the  case  of  The  Gipsy  King,^  "that  the  pilot 
is  responsible  to  see  that  the  anchor  is  in  a  proper 
situation  to  be  dropped  when  necessary.  The  crew 
are  under  his  superintendence  and  direction,  and 
bound  to  execute  his  orders."  This  is  true,  but  the 
reasoning  is  not  altogether  satisfactory.  The  posi- 
tion is  a  sound  one,  that  the  mode,  the  time,  and  the 
place  of  bringing  a  vessel  to  an  anchor,  is  within  the 
peculiar  province  of  the  pilot  who  is  in  charge. 

434.  But  is  it  not  the  duty  of  the  master  to  have 
the  anchor  in  a  proper  situation,  so  that  the  order  of 
the  pilot  to  drop  it,  may  be  at  once  executed?  The 
vessel  must  be  properly  equipped,  or  rather,  be  suffi- 
cient in  point  of  equipments  to  be  conducted  over 
the  pilotage  grounds.  But  suppose  there  is  no  anchor 
on  board,  and  a  collision  arises  from  its  absence. 
Clearly,  the  pilot  is  not  responsible  in  such  a  case. 
Now,  on  the  other  hand,  suppose  that  the  anchor  is 
in  such  a  situation  that  it  cannot  be  used.  Can  it  be 
said  that  the  vessel  is  sufficient  in  point  of  equip- 
ments, while  the  anchor  is  in  that  predicament? 

43'j.  Tlic  question  sini})ly  is,  whether  it  is  the 
duty  of  tlie  master  and  crew  to  have  the  means  of 
conducting  tlie  vessel  into  port,  and  anclioring  her,  in 
a  suitable  condition  to  lu'  employed  under  the  direc- 
tion of  the  ])ilot,  oi'  wlietlier  tluit  duty  devolves 
upon  the  l;itt<')".  It  seems  to  us,  that  justice  and 
common  sense  agree  upon  this  point,  and  should  pre- 

•  2  W.  llob.  Ad.  R.  547. 


416  THE    LAW    OF     SHIPPING. 

scribe  the  rule  of  law.  We  think  that  it  is  mani- 
festly the  duty  of  the  master  to  see  that  the  anchor 
is  in  a  proper  condition  to  be  used,  and  that  the 
pilot  is  exonerated  from  any  liability  for  damages 
that  may  ensue,  from  its  not  being  in  a  proper  condi- 
tion to  be  dropped  when  necessary. 

436.  A  vessel  in  charge  of  a  licensed  pilot,  whilst 
in  tow  of  a  steam  tug,  is,  under  ordinary  circum- 
stances, to  be  considered  as  navigated  by  the  pilot 
in  charge.  If  the  course  pursued  by  the  steam  tug 
is  in  conformity  with  his  directions,  and  a  collision 
takes  place,  the  pilot  is  responsible,  and  not  the 
owners  of  the  vessel  or  of  the  steam  tug.  If,  how- 
ever, the  steamer  disregarded  the  directions  of  the 
pilot,  and  the  collision  was  occasioned  by  her  mis- 
conduct, the  owner  of  the  ship,  in  that  case,  would 
be  responsible,  as  for  the  acts  of  their  servant ;  and 
they  must  seek  their  redress  against  the  owners  of 
the  steam  tug.'  It  should  be  added,  as  a  proper 
qualification  of  the  general  doctrine,  that  although 
the  course  pursued  by  the  steam  tug  is  in  confor- 
mity with  the  directions  of  the  pilot,  he  will  be 
exonerated  from  liability,  if  it  can  be  made  to  ap- 
pear that  he  acted  with  good  faith  and  with  his  best 
judgment,  that  he  betrayed  neither  carelessness  nor 
ignorance,  but  simply  misjudged  or  miscalculated 
in  circumstances  where  the  most  prudent  man  might 
have  erred.  It  is  not  uncommon  for  the  best  and 
wisest  designs  to  miscarry." 

I  The  Gipsy  King,  2  W.  Rob.  Ad.  R.  537,  542. 
"  The  Constitution,  Gilpin's  R.  579. 


OP    PILOTS.  417 

437.  The  owner  being  discharged  from  liability  for 
any  mischief  or  damage  occurring  from  the  neglect, 
default,  or  incapacity  of  a  qualified  pilot,  in  charge 
of  a  vessel,  it  would  seem  necessarily  to  follow,  that 
the  ship  itself  is  discharged.  It  seems  a  contradic- 
tion in  terms  to  say  that  the  owner  cannot  be  held 
answerable  for  the  acts  of  an  agent  of  the  law,  but 
the  owner's  property  may  be.  Yet  that  was  the 
principle  declared  by  Sir  John  Nichol,  in  the  case 
of  The  Girolamo.^  The  Girolamo  was  a  foreign 
vessel,  which  left  the  London  Docks  with  a  licensed 
pilot  on  board,  towed  by  a  steamer.  After  she  had 
passed  Blackwell,  a  fog  came  on,  during  which  she 
ran  foul  of  the  Edward,  a  British  convict  vessel, 
moored  a  little  below  Woolwich,  in  the  proper  berth 
for  such  vessels.  The  Girolamo  was  arrested,  and 
gave  bail  in  £200. 

438.  Sir  John  Nichol  said  it  could  not  be  doubted 
that,  before  the  passage  of  the  Acts  of  Parliament,^ 
upon  which  the  respondents  relied,  exonerating 
masters  and  owners  when  a  licensed  pilot  is  in 
charge  of  the  vessel,  the  remedy  in  rem  existed  in 
the  Court  of  Admiralty,  and  the  legislature  had  not 
in  express  terms  taken  it  away.  And  he  sustained 
the  proceeding  in  rem  against  the  vessel. 

431).  The  same  ({uestion  came  buibre  Judge  Kane, 
in  the  case  of  The  Creole,^  and  was  decided  upon  a 


•  3  Hogg.  Ad.  II.  109. 

« G  Geo.  4,  c.  125 ;  1  and  2  Geo.  4,  c.  75,  s.  32. 
3  Legal  Intelligencer  of  May  7,  '52,  Eastern  Difltrict  of  Penn- 
sylvania.    Since  the  text  was  written,  we  have  understood  that 


418  THE    LAVr    OF     SllimNG. 

principle  more  in  conformity  with  Law  iind  common 
sense.  "  There  can  be  no  Uability,"  said  his  Honor, 
"  for  collision,  where  there  has  been  no  wrong :  the 
foundation  of  the  demand  against  the  owner  in  per- 
sonam, or  the  vessel  in  rem,  is  that  he,  or  his  repre- 
sentative, had  the  power  to  prevent  the  wrong. 
The  master  is  the  owner's  representative ;  for  the 
owner  selects  him,  and  substitutes  him  for  himself, 
or  does  Avithout  him,  if  he  pleases,  and  takes  the 
command  in  person.  Qui  facit  ^)er  al'ium,  &c.,  ex- 
plains this  liability  very  perfectly.  But  it  never 
has  been  held,  that  the  ship-owner  should  answer 
for  the  conduct  of  a  prize-master,  or  the  piracies  of 
a  revolted  crew ; — nay,  not  even  for  their  contracts, 
though  made  for  the  benefit  of  the  ship  ;^  and  for 
the  simple  reason  that  there  is  no  such  thing  as  a 
representative  in  invitum,  and  no  such  thing  as  lia- 
bility for  the  acts  of  a  stranger.  The  pilot,  if  it  is 
the  law  that  places  him  in  charge  of  the  vessel,  is  as 
little  the  owner's  representative  as  the  marshal  is, 
who  holds  her  in  possession  under  a  writ  of  attach- 
ment  For  the  present  case  it  is  enough  to 

say,  the  vi'i  major  of  the  law  must  be  esteemed  as 
effective  as  any  other  in  absolving  both  the  ship 
and  her  owner;  and  that,  therefore,  whether  the 
vessel  can  or  cannot  be  regarded,  in  any  case,  as  the 
subject  of  an  independent  liability,  she  can  never  be 
regarded  as  liable  for  the  consequences  of  an  act 
done  under  legal  compulsion." 

the  Circuit  Court  of  the  United  States  has  reversed  the  decision 
of  Judge  Kane,  and  held  that,  although  the  vessel  is  in  charge  of 
a  licensed  pilot,  and  the  injury  arises  from  the  fault  of  the  pilot 
alone,  still,  the  vessel  is  bound  in  specie  to  answer  for  the  damage. 
1  The  Ann,  1  Mason's  K.  508-513. 


OF    PILOTS.  419 

440.  There  can  be  no  doubt  as  to  the  duty  of  the 
master  engaged  in  a  foreign  trade  to  put  his  ship 
under  the  charge  of  a  pilot,  both  on  his  outward  and 
homeward  voyage,  when  he  is  within  pilotage  limits/ 
This  is  a  duty  he  owes  to  his  owners ;  and  if  he  fails 
to  take  a  pilot,  when  he  might  have  obtained  one, 
and  grounds,  the  underwriters  are  discharged.^     But, 

'  The  William,  6  Rob.  316;  Law  v.  Hollingsworth,  7  T.  R. 
160;  3  Kent's  Com.  175. 

»  Phillips  V.  Headlam,  2  B.  &  Adol.  380;  M'Millan  v.  U.  Ins. 
Co.,  1  Rice's  S.  C.  R.  248.  In  this  case  it  was  held  that  where 
the  master  fails  to  employ  a  pilot  to  navigate  a  vessel,  in  coming 
into  or  leaving  a  port  where  it  is  customary  to  do  so,  and  a  loss 
happens  in  consequence  of  a  pilot  not  having  been  employed,  the 
underwriters  upon  a  policy  on  the  cargo  would  be  discharged. 
But  if  the  vessel  pass  uninjured  through  the  dangers  to  avoid 
which  a  pilot  is  usually  employed,  and  the  loss  happens  at  a  point 
beyond  which  the  pilot's  services  cease  to  be  necessary,  the  assured 
would  be  entitled  to  recover.  The  true  principle  was  said  to  be 
this  :  if  a  vessel  without  a  pilot  sustain  injury  in  entering  or  leaving 
a  harbor  where  it  is  customary  to  have  a  pilot,  that  then  such 
injury  does  not  come  within  the  perils  insured  against.  It  is  not 
a  peril  of  the  sea;  it  is  a  loss  from  the  bad  navigation  of  the 
vessel,  and  is  to  be  set  down  to  the  fault  of  the  master,  and,  con- 
Bequcntly,  the  owners  would  be  liable  for  it.  The  general  rule  is, 
if  the  owners  would  not  be  liable  for  the  loss,  that  then  the  in- 
surers arc. 

In  the  case  of  Flanigen  v.  Washington  Ins.  Co.,  7  Barr's  R. 
300,  it  was  held  that  the  Pilot  Law  of  Pennsylvania  did  not  create 
a  statutory  Hcaworthincss.  And  therefore  a  policy  of  insurance 
on  an  outward-bound  vessel  is  not  avoided  by  reason  of  not  having 
on  board  a  pilot,  although  a  loss  occurred  in  pilot-ground  in  the 
bay,  and  at  the  time  of  the  voyage  there  was  an  establishment  of 
pilots  at  the  port  of  departure,  and  the  Act  of  1803  required  such 
a  vessel  to  take  a  licen.sed  pilot,  or  forfeit  a  sum  equal  to  half- 
pilotage.  The  Court,  however,  did  not  deny  that  if  u  vessel  sails 
from  a  port  where  there  is  an  establishment  of  pilots,  and  the 


420  THE   LAW   OF   siiirriNG. 

aside  from  the  duty  the  master  is  under  to  the 
owners,  of  taking  a  pilot,  it  has  been  doubted 
whether  a  foreign  ship  is  compeUable,  under  the 
usual  provisions  of  pilot  laws,  to  take  a  pilot.'  The 
o-eneral  English  law  nuxkes  no  distinction,  whatever 
may  be  the  case  under  some  of  the  British  pilot 
laws,  between  foreign  and  domestic  ships ;  and  the 
compulsory  provisions  of  our  Pilot  Acts  apply  equally 
to  foreign  as  to  domestic  ships.  The  Pennsylvania 
Act  of  1803  mulcts  foreign  vessels  in  special  liabili- 
ties.'    It  should  be  also  observed  that  the  neglect  to 


nature  of  the  navigation  requires  one,  it  is  his  duty  to  take  a  pilot 
on  board.     This,  as  a  general  proposition,  was  admitted  to  be  true. 
It  required,  however,  the  Court  said,  to  be  received  with  some 
qualification.     "  It  is  not  necessary,"  observed  Rogers,  J.,  "in  all 
cases,  to  take  a  pilot,  without  regard  to  the  burden  of  the  vessel  or 
the  nature  of  the  trade.     In  1  Emerigon,  p.  402,  it  is  laid  down 
that  a  captain  who  knows  the  place  to  which  he  is  bound  is  not 
obliged  to  employ  a  coast-pilot.     These  matters  must  be  regulated 
by  the  custom  of  the  port;  and  hence  the  necessity  of  inquiring 
into  the  custom,  which  can  be  done  only  through  the  medium  of 
a  jury.     Is  it  customary  or  necessary  for  a  vessel  engaged  in  the 
coasting  trade,  of  the  burden  of  the  one  in  question,  to  take  a 
pilot,  when  the  master,  in  the  opinion  of  the  owner,  has  competent 
skill  to  conduct  her  to  the  ocean  ?     That  the  river  and  bay  of  the 
Delaware  is  pilot-ground  for  all  vessels  engaged  in  the  foreign  or 
coasting  trade,  is  most  true;  but  it  is  made  so,  not  by  force  of  the 
Act  of  1S03,  but  by  the  usage  of  the  trade  or  port.     It  is  coeval 
with  the  settlement  of  the  province,  or,  at  any  rate,  existed,  and 
was  judicially  known,  long  before  the  passage  of  the  Act  in  ques- 
tion.    That  the  usage  may  be  modified  by  statute  may  be  con- 
ceded, but  not  to  the  extent  of  creating  a  statutory  seaworthiness." 
Vide  the  case  of  Bolton  v.  Am.  Ins.  Co.,  reported  in  3  Kent's 
Com.  176,  note;  and  Keeler  v.  Firemen's  Ins.  Co.,  3  Hill's  R. 
250. 

'  The  Girolamo,  3  Ilagg.  Ad.  li.  175. 

^  The  Legal  Intelligencer,  May  7,  '52. 


OF    PILOTS.  421 

take  a  pilot,  when  it  ought  to  be  done,  will  subject 
the  owners  to  a  suit  for  the  damages  that  may  hap- 
pen to  shippers  and  others  by  such  default/ 

441.  It  is  not  sufficient  for  the  owners  of  a  vessel 
doing  a  damage  to  allege  merely  that  there  was  a 
licensed  pilot  on  board,  and  upon  that  simple  aver- 
ment to  claim  exemption  from  liability,  unless  the 
other  side  can  prove  the  damage  not  to  have  arisen 
from  the  fault  of  the  pilot.  They  are  bound  to 
prove  that  the  pilot  was  actually  directing  the 
course  of  the  vessel.  "The  general  liability  of 
vessels  doing  damage,"  says  Dr.  Lushington,  in  the 
case  of  The  Protector,^  "  remains  as  it  was.  The 
ancient  rule  of  the  Admiralty  and  common  law  are 
not  abolished.  The  effect  of  the  Act  is  merely  this, 
that  the  liability  is  restricted  to  certain  cases,  and 
the  extent  of  that  liability  limited  to  the  value  of 
the  ship  and  freight.  But  the  great  principle  that 
a  wrong-doer  is  responsible  to  the  injured  party, 
saving  in  the  excepted  cases,  continues  unaltered. 

442.  "  Is  it  not  incumbent,  then,  upon  the  parties 
who  claim  an  exemption  from  a  general  liability  by 
reason  of  a  special  legislative  enactment,  to  show  the 
grounds  on  which  the  exemption  is  claimed ;  and  if, 
as  in  these  cases,  the  exemption  is  rested  upon  the 
fact  that  the  ficcident  was  the  fault  of  a  pilot  on 
board,  nrc  tlicy  not  bound  to  prove  the  misconduct 


'  M'.Millan  v.  Ing.  Cn.,  1  Rico  (S.  C),  248;  Kcolcr  v.  Fire- 
men's Ins.  Co.,  3  Hill,  250;  3  Kent's  Com.  17(),  note;  Abbott 
on  Shipping,  2H0. 

'  ]  W.  Hob.  K.  45. 


422  THE    LAW    OF    SHIPPING. 

of  that  pilot?  dan  the  Court  infer,  in  all  cases, 
that  a  collision  arises  from  his  fault  ?  It  may  be 
accidental,  or  arise  from  the  fault  of  the  master  or 
mariners,  or  even  from  some  defect  of  the  vessel 
itself.  How  can  I,  then,  throw  the  otius  prohandi 
on  the  owners  of  the  vessel  which  has  received  the 
damage  ?  It  is  almost  impossible  they  could  prove 
it.  The  accident,  in  cases  of  this  kind,  most  fre- 
quently occurs  in  the  darkness  of  the  night.  In  such 
cases,  then,  how  is  the  owner  of  the  suffering  vessel 
to  prove  that  the  collision  arose  from  the  fault  of 
the  master,  or  the  neglect  or  misconduct  of  the  crew 
on  board  the  vessel  by  which  the  damage  is  occa- 
sioned? He  has  no  means  of  so  doing;  and  it 
would,  I  conceive,  be  an  aggravation  of  the  injury, 
if  this  Court  were  to  impede  the  attainment  of  his 
redress,  by  imposing  demands  upon  him  which,  in 
the  majority  of  instances,  he  would  be  wholly  unable 
to  satisfy." 

We  cannot  but  think  that  these  considerations 
are  conclusive,  and  should  outweigh  the  opposite 
decisions,  in  Bennett  v.  Moita,^  Ritchie  v.  Bousfield,^ 
and  in  The  Christiana,^  where  Sir  C.  Robinson 
appears  to  have  adopted  the  doctrine  of  the  first 
two  cases. 

'  7  Tuunt.  R.  258.        ^  Ibid.  309.        "  2  Hagg.  Ad.  R.  183. 


423 


CHAPTER   IV. 

OF  THE  CONVEYANCE  OF  PASSENGERS. 

443.  The  aiithoritj-  of  a  master  at  sea  is  necessarily 
summary  and  often  absolute.  All  on  board  are  sub- 
ject to  his  authority,  and  within  its  scope  are  bound 
by  it.^     Whatever  is  necessary  for  the  security  of  the 


»  Chamberlain  v.  Chandler,  3  Mason's  R.  242,  245.  "For  the 
time,"  said  Judge  Story,  in  this  case,  "  the  master  exercises  the 
rights  of  sovereign  control ;  and  obedience  to  his  will,  and  even  to 
his  caprices,  becomes  almost  indispensable.  If  he  chooses  to  per- 
form his  duties,  or  to  exercise  his  office,  in  a  harsh,  intemperate,  or 
oppressive  manner,  he  can  seldom  be  resisted  by  physical  or  moral 
force;  and,  therefore,  in  a  limited  sense,  he  may  be  said  to  hold 
the  lives  and  personal  welfare  of  all  on  board  in  a  great  measure 
under  his  arbitrary  discretion.  He  is  nevertheless  responsible  to 
the  law;  and  if  he  is  guilty  of  gross  abuse  and  oppression,  I  hope 
it  will  never  be  found  that  Courts  of  justice  are  slow  in  visiting 
him,  in  the  shape  of  damages,  with  an  appropriate  punishment." 

By  the  Act  of  Congress  of  May  17,  1848,  chap.  41,  sec.  5,  it  is 
provided  that  the  captain  of  any  vessel,  whether  of  the  United 
States  or  any  other  country,  having  sufficient  capacity,  according 
to  law,  for  fifty  or  more  passengers  (other  than  cabin  passengers) 
employed  in  transporting  sueii  passengers  between  the  United 
States  and  Europe,  is  authorized  to  maintain  good  discipline,  and 
such  habits  of  cleanliness  among  such  passengers,  as  will  tend  to 
the  preservation  and  promotion  of  healtli ;  and  to  that  end  he  is 
required  to  cause  such  regulations  as  he  may  adopt  for  tliis  pur- 
po.sc  to  be  posted  up,  before  sailing,  on  board  such  vessel,  in  a 
place  accessible  to  such  pa.sscngcrs,  and  shall  keep  the  same  so 
posted  up  during  the  voyage. 


424  THE    LAW    OF    SHIPPING. 

vessel,  the  discipline  of  the  crew,  the  safety  of  all  on 
board,  the  master  may  lawfully  require,  not  only  of 
the  ship's  company,  who  have  expressly  contracted 
to  obey  him,  but  of  those  also  whom  he  has  engaged 
to  carry  to  their  destination  on  the  implied  condi- 
tion of  their  submission  to  his  rule/  On  the  ap- 
proach of  an  enemy,  he  has  a  right  to  assign  pas- 
sengers on  board  a  station,  which  it  is  their  duty  to 
accept.'  This  is  but  an  example  of  the  application 
of  the  general  doctrine,  that  a  passenger  is  bound  to 
do  works  of  necessity  for  the  general  security,  and 
for  the  preservation  of  the  lives  of  all  on  board.^ 

444.  And  for  his  services  he  is  entitled  it  seems 
to  remuneration.  The  reason  assigned  is,  that  except 
under  peculiar  circumstances,  the  passenger  is  at 
liberty  to  give  up  his  passage  and  quit  the  ship. 
Hence,  if  he  remains  to  assist  the  shi^)  in  her  dis- 
tress, and  at  the  risk  of  his  personal  safety,  he  does 
so  voluntarily,  and  may,  therefore,  be  entitled  to 
remuneration.  Yet,  in  a  case  where  the  ship  is 
attacked,  where  the  passenger  has  no  means  of 
leaving  her,  and  would  have  no  right  to  quit  her, 
even  if  he  had,  in  such  a  case,  where  he  is  compelled 
to  remain  and  assist  in  the  defence  of  the  ship,  he 
will  be  entitled,  it  is  said,  to  prize  money.     So  that 

'  Abbott  on  Shipping,  p.  282. 

»  Boyce  v.  Bayliffe,  1  Camp.  N.  P.  K,.  58 ;  Same  v.  Douglass, 
Id.  60. 

3  Newman  v.  Walter,  3  Bos.  &  Pull.  G12.  It  was  held  in  this 
case  that  a  passenger  may  become  a  salvor.  Vide,  also,  to  the  same 
point,  The  Two  Friends,  1  Rob.  Ad.  H.  285 ;  The  Beaver,  3  Rob. 
Ad.  R.  202  ;  The  Joseph  Harvey,  1  Id.  306. 


OF     THE    CONVEYANCE    OF    PASSENGERS.      425 

his  rio-ht  to  remuneration  does  not  in  all  cases  de- 
pend  upon  the  fact,  whether  his  services  were  volun- 
tary or  not.^ 

445.  The  contract  for  the  conveyance  of  passen- 
gers on  the  high  seas,  or  on  the  navigable  waters  of 
the  United  States  in  steamboats,  and  other  vessels  of 
twenty  tons  burden  and  upwards,  enrolled  and 
licensed  for  the  coasting  trade,  and  at  the  time 
employed  in  business  of  commerce  and  navigation 
between  ports  and  places  in  different  States  and  ter- 
ritories, is  a  maritime  contract,  and  a  subject  of  Ad- 
miralty jurisdiction.'  Hence,  on  a  breach  of  a 
passenger  contract,  and  damage  resulting,  the  ship, 
as  well  as  the  owner,  is  bound  to  respond,  and  all 
the  reasons  in  the  maritime  law  for  charging  the 
ship  in  case  of  the  breach  of  a  contract  of  affreight- 
ment of  goods  and  merchandise,  apply  Avith  equal 
force  in  the  case  of  the  breach  of  a  passenger  con- 
tract, and  the  one  is  as  much  the  appropriate  subject 
of  Admiralty  jurisdiction  as  the  other.^ 

44G.  If  the  contract  stipulates  that  the  carrier 
will  convey  the  passenger  to  a  designated  port,  and, 
without  the  consent  of  the  passenger,  or  any  default 
or  neglect  on  his  part,  he  is  carried  to  a  diflerent 
port,  no  recovery  can  be  had  for  the  amount  of  the 

•  Newman  v.  Walters,  3  IJos.  &  Pull.  G12. 

"The  I'ropcllcr  Gcncsco  Chief,  12  How.  443;  The  Abcrfoyle, 
JJlatcl.ford'rt  R.  300;  The  Pacific,  Id.  5G9;  The  Creole,  2  Whart. 
Dig.  G55;  The  Ach.sah,  Ibid. ;  (!haiubcrlain  v.  Chandler,  3  Ma.son. 
242. 

'  The  Aberfoylc,  1  inatchford'.s  K.  :',W  ■  The  Pacific,  Li.  OOH. 


42G  THE    LAW    OF     SHIPPING. 

passage-money.  On  the  contrary,  the  passenger 
may  recover  of  the  carrier  any  damage  he  may 
have  sustahied  from  this  breach  of  the  contract. 
If  the  contract  itself  specifies  a  certain  sum,  as  the 
penalty  to  be  incurred  upon  a  failure  to  perform  the 
conditions  of  the  contract,  and  those  conditions  are 
not  performed,  the  penalty  is  thereby  forfeited,  and 
may  be  recovered.  But  if  there  is  a  part  perform- 
ance, the  penalty  may  be  modified  accordingly. 

447.  Hence,  when  a  passenger  advances  half  the 
sum  stipulated  in  the  contract,  which  has  a  penal 
clause  of  one  thousand  dollars  in  case  of  failure,  and 
the  other  party  fails  to  complete  his  part,  the  pas- 
senger cannot  recover  back  the  sum  advanced  and 
the  penalty  too ;  he  can  only  recover  the  penalty.^ 
When  the  contract  is  express,  the  parties  must  be 
governed  by  its  terms.  The  usage  of  the  particular 
trade,  however,  will  be  taken  into  consideration,  in 
the  interpretation  of  those  terms.  If  the  contract  is 
not   express,  it   may   also   be   evidenced   by    such 


usage. ^ 


448.  If  the  time  of  sailing  forms  an  essential  part 
of  the  contract,  and  is  not  complied  with,  the  ship- 
owner cannot  recover  the  passage-money,  but  is 
responsible  for  the  damage  the  passenger  may  have 
sustained  from  his  non-performance.  If,  on  the  con- 
trary, the  time  of  sailing  is  not  a  real  and  essential 

>  M'Gloin  V.  Henderson,  G  Lou.  K.  715;  La.  Code,  Ar.  2123  ; 
Pothier  on  Ob.,  No.  342. 

2  Abbott  on  Shipp.,  284;  Gillan  v.  Simpkin,  4  Camp.  N.  P.  Pt. 
240 ;  Andrew  v.  Moorhouse,  5  Taunt.  R.  435. 


OF    THE    CONVEYANCE    OF    PASSENGERS.      427 

part  of  the  contract,  but  only  matter  of  representa- 
tion while  the  negotiation  is  going  on,  in  that  case 
there  is  a  compliance  with  the  contract,  if  the  ship 
sails  in  a  reasonable  time.^  When  the  day  is  fixed 
for  the  ship  to  sail,  and  the  passenger  has  paid  the 
price  of  his  passage,  but,  owing  to  his  misfortune  or 
neglect,  without  any  laches  being  imputable  to  the 
master  or  owner  of  the  ship,  is  left  behind,  he  can- 
not recover  back  the  passage-money.  The  principle 
"Empty  for  full"  is  equally  applicable  to  this  case 
as  to  the  case  of  freight  where  no  cargo  is  put  on 
board  according  to  agreement.^ 

'  Yates  V.  Duff,  5  Car.  &  P.  3G9. 

*1  Peters'  Ad.  R.  297,  note.  "Near  forty  years  ago,"  says 
Judge  Peters,  "  in  my  outset  at  the  bar,  I  brought  hulch.  r/ss»???j). 
for  money  had  and  received,  &c.,  against  the  master  of  a  ship,  for 
ninety  guineas  paid,  in  advance,  by  a  gentleman,  for  himself  and 
others,  who  took  the  cabin,  and  agreed  for  their  passages  from  an 
outport  of  England  to  Philadelphia.  The  day  for  going  on  board 
had  been  fixed  by  the  parties.  The  passengers  loitered  on  their 
route  from  London,  and  did  not  arrive  at  the  port  appointed  until 
the  ship  had  departed.  Tlie  case  turned  out  to  be  as  befm-c  f^tatcd, 
though  conceived  by  my  client  to  be  otherwise,  as  to  the  day  fi.Kcd. 
Such  of  the  stores  as  were  in  preservation,  and  laid  in  by  the 
passengers,  were  returned.  I  failed  in  the  cause.  The  passage- 
money  was  held  to  be  legally  retained,  among  other  reasons,  on 
the  principle  mentioned  in  the  above  case  (The  Brig  Cynthia) ; 
namely,  that  freight  is  earned,  '  empty  for  full,'  when  the  disap- 
pointment is  owing  to  the  misfortune  or  neglect  of  the  freighter, 
and  no  laches  are  itnputalile  to  the  master  or  owner  of  the  ship. 
In  this  ca.sc,  it  appeared  that  the  wind,  which  had  been  adverse, 
veered  to  a  point  favorable  to  the  ship's  departure  from  the  Down.s, 
and  afforded  an  opportunity  which  could  not,  at  that  season  of  the 
year,  be  ju.stifiably  neglected.  She  had  waited  three  or  i'lur  days 
after  that  agreed  on."  Vide,  with  respect  to  passenger  contracts, 
MuUoy  V.  Hacker,  f)  East,  .'510;  Siordet  v.  IJrodie,  3  Camp.  N. 


428  THE    LATT    OF    SHIPPING. 

440.  A  contract  to  carry  passengers  differs  from 
a  contract  to  carry  goods.  For  the  goods,  the 
carrier  is  answerable,  at  all  events,  except  the  act  of 
God  and  the  public  enemy.  But,  with  regard  to 
passengers,  his  undertaking  and  liability  goes  only 
to  this  extent,  nameh',  that  he,  or  his  agent,  shall 
possess  competent  skill,  and  that,  as  far  as  human 
care  and  foresight  can  go,  he  will  transport  them 
safely.  Hence,  he  is  bound  for  defects  in  the  means 
of  conveyance,  if  they  might  have  been  discovered 
and  remedied  upon  the  most  thorough  and  careful 
examination  of  the  vehicle ;  but  he  is  not  liable  for 
accidents  happening  from  an  internal  and  hidden 
defect,  which  a  thorough  and  careful  examination 
could  not  disclose,  and  which  could  not  be  guarded 
against  by  the  exercise  of  a  sound  judgment  and  the 
most  vigilant  oversight.' 

449  a.  Carriers,  engaged  in  the  business  of  con- 

P.  R.  253  ;  Young  v.  Fcwson,  8  Car.  &  P.  56 ;  Prendcrgast  v. 
Compton,  Ibid.  454. 

'  To  bring  a  person  within  the  description  of  a  common  carrier, 
he  must  exercise  it  as  a  public  employment ;  he  must  undertake 
to  caiTy  goods  for  persons  generally;  and  he  must  hold  himself 
out  as  ready  to  engage  in  the  transportation  of  goods  for  hire,  as 
a  business,  and  not  as  a  casual  occupation,  pro  hac  vice.  A 
common  carrier  has  therefore  been  defined  to  be  one  who  under- 
takes, for  hire  or  reward,  to  transport  the  goods  of  such  as  choose 
to  employ  him  from  place  to  place.  Story  on  Bailments,  322 ; 
See  The  Huntress,  Duvies'  R.  82 ;  Citizens'  Bank  v.  Nantucket 
Steamboat  Co.,  2  Story's  R.  16;  Christie  v.  Griggs,  2  Camp.  79; 
Aston  V.  Heaven,  2  Esp.  R.  533 ;  2  Kent,  406 ;  Boyce  v.  Ander- 
son, 2  Peters,  150;  Stokes  v.  Saltonstall,  13  Id.  181;  Stockton 
V.  Frey,  4  Gill.  408,  423  ;  Ingalls  v.  Bills,  9  Metcalf,  1. 


OF    THE    CONVEYANCE    OF    PASSENGERS.      429 

veying  goods  and  passengers,  are  bound  to  receive 
passengers  on  board,  if  they  iiave  suitable  accommo- 
dations, and  there  is  no  reasonable  objection  to  the 
character  or  conduct  of  the  person  applying  for  a 
passage.  The  right  of  passengers  to  a  passage  on 
board  of  a  steamboat  is  not  an  unlimited  right.  It 
is  subject  to  such  reasonable  regulations  as  the  pro- 
prietors may  prescribe,  for  the  due  accommodation 
of  passengers,  and  for  the  due  arrangements  of  their 
business.  They  have  the  right,  also,  to  consult  and 
provide  for  their  own  interests  in  the  management 
of  such  boats,  as  a  common  incident  to  their  right  of 
property.  They  are  not  bound  to  admit  passengers 
on  board  who  refuse  to  obey  the  reasonable  regula- 
tions of  the  boat,  or  who  are  guilty  of  gross  and 
vulgar  habits  of  conduct,  or  who  make  disturbances 
on  board,  or  whose  characters  are  doubtful,  or  dis- 
solute, or  suspicious,  and,  a  priori,  whose  characters 
are  unequivocally  bad.  Nor  are  they  bound  to 
admit  passengers  on  board  whose  object  is  to  inter- 
fere with  the  interests  or  patronage  of  the  proprietors, 
so  as  to  make  the  business  less  lucrative  to  them.^ 

450.  As  passengers  are  bound  to  obey  the  orders 
and  regulations  of  the  proprietors,  unless  they  are 
oppressive  and  grossly  unreasonable,  whoever  goes 
on  board,  under  ordinary  circumstances,  impliedly 
contracts  to  obey  such  regulations,  and  may  be 
justly  refused  a  passage,  if  lie  wilfully  resists  or 
violates  tlicm.^  If  a  passenger  should  use  threats  of 
personal  violence  towards  the  captain,  he  may  ex- 

«  Jcncks  V.  Coleman,  2  Sum.  II.  221,  224;  Citizens'  Bank  v. 
Steamboat  Co.,  supra. 
«  Ibid. 


430  THE    LAW    OF    SHIPPING. 

elude  liiin  from  the  table,  and  require  him  to  take 
his  meals  in  his  own  private  apartment.  If  the 
husband  be  excluded  Irom  the  cuddy-table,  and  the 
wife,  not  from  compulsion,  but  from  a  wish  to  be 
with  her  husband,  take  her  meals  with  him  in  pri- 
vate, this  will  not  amount  to  a  breach  of  contract 
on  the  part  of  the  captain  so  far  as  regards  the  wife. 

451.  The  contract  of  passengers  is  not  for  mere 
ship-room,  and  personal  existence  on  board ;  but  for 
reasonable  food,  comforts,  necessaries,  and  kindness. 
It  is  a  stipulation,  not  for  toleration  merely,  but  for 
respectful  treatment,  for  that  decency  of  demeanor 
which  constitutes  the  charm  of  social  life,  for  that 
attention  which  mitigates  evil  without  reluctance, 
and  that  promptitude  which  administers  aid  to  dis- 
tress. In  respect  to  females,  it  proceeds  yet  further  : 
it  includes  an  implied  stipulation  against  general 
obscenity, — that  immodesty  of  approach  which  bor- 
ders on  lasciviousness,  and  against  that  wanton  dis- 
regard of  the  feelings  which  aggravates  every  evil, 
and  endeavors,  by  the  excitement  of  terror,  and  cool 
malignity  of  conduct,  to  inflict  torture  upon  suscep- 
tible minds.  The  law  gives  compensation  for  men- 
tal sufferings  occasioned  by  acts  of  wanton  injustice, 
equally  whether  they  operate  by  way  of  direct  or  of 
consequential  injuries.  In  each  case,  the  contract 
of  the  passengers  for  the  voyage  is,  in  substance, 
violated ;  and  the  wrong  is  to  be  redressed  as  a 
cause  of  damage.^ 


'  Chamberlain  v.  Chandler,  3  Mason,  242,  246.  "  I  do  not 
say,"  observed  Judge  Story,  "  that  every  slight  aberration  from 
propriety  or  duty,  or  that  every  act  of  unkindness  or  passionate 


OF    THE    CONVEYANCE    OF    PASSENGERS.      431 

/ 

452.  Where  a  person  agrees  for  a  cabin  passage, 
and  pays  his  passage,  he  is  entitled  to  the  benefit  of 
his  contract.  If,  therefore,  he  is  excluded  from  the 
cabin,  the  owner  of  the  vessel  is  responsible  in 
damages.  And  it  is  no  defence  to  an  action  for  the 
injury,  that,  when  the  passenger  goes  on  board,  he 
is  told  by  the  master  that  he  is  unable  to  lodge  him 
in  the  cabin,  and  proposes  that  he  should  forbear 
taking  his  passage  on  board,  or  stay  with  his  bag- 
gage on  deck.  No  proposition  of  this  nature  can 
absolve  the  owners  from  the  obligation  to  accommo- 
date him  in  the  cabin,  together  with  his  baggage.' 

453.  Formerly,  it  was  the  received  doctrine  that 


folly,  is  to  be  visited  with  punishment;  but,  if  the  whole  course 
of  conduct  be  oppressive  and  malicious, — if  habitual  immodesty  is 
accompanied  by  habitual  cruelty, — it  would  be  a  rcpnxich  to  the 
law  if  it  could  not  award  some  recompense."  In  the  case  of 
Young  V.  Fewson,  8  Car.  &  P.  5G,  which  was  an  action  against 
the  captain  of  a  ship  for  not  furnishing  good  and  fresh  provisions 
to  a  passenger  on  the  voyage,  Lord  Denman,  in  his  address  to 
the  jury,  .said  :  "  I  think  the  result  of  the  whole  is,  that  the  cap- 
tain did  not  supply  so  large  a  quantity  of  good  and  fresh  provisions 
as  is  usual  under  such  circumstances.  But  there  is  no  real  ground 
of  complaint,  no  right  of  action,  unless  the  plaintiff  has  really  been 
a  sufferer  J  for  it  is  not  because  a  man  does  not  get  so  good  a 
dinner  as  he  might  have  had,  that  he  is  therefore  to  have  a  right 
of  action  against  the  captain  who  does  not  provide  all  that  he 
ought.  You  must  be  satisfied  that  there  was  a  real  grievance  sus- 
tained by  the  plaintiff." 

'  St.  Amand  v.  Lizardi,  4  Lnu.  R.  '24.'].  An  agreement  between 
the  master  of  a  vessel  and  a  passenger,  that  the  latter  shall  remain 
on  board  until  he  has  paid  his  freight,  is  lawful,  lie  cannot 
plead,  as  a  .'^et-off,  that  the  master  did  not  furnish  the  provisions 
which  ho  .stipulated.  These  are  mutual  covenants,  in  wliich  each 
party  may  have  an  action.     Com.  v.  Shultz,  Bright.  11.  '2'.*. 


432  THE    LAW    OF    SHIPPING. 

the  carrier,  whether  by  hand  or  water,  was  not 
habk^  for  the  baggage  of  passengers,  unless  a  dis- 
tinct price  had  been  paid.  It  was  placed  on  the 
ground  that  the  carrier  is  liable  only  in  respect  to 
his  reward,  and  that  the  compensation  should  be  in 
proportion  to  his  risk.  But  now,  by  common  usage, 
sanctioned  by  the  Courts,  a  reasonable  amount  of 
bagaa2;e  is  deemed  to  be  included  in  the  fare  of  the 
passenger.  The  Courts,  however,  will  not  allow 
this  custom  to  be  abused,  and,  under  pretence  of 
baggage,  permit  articles  to  be  included  not  within 
the  scope  of  the  term  or  intent  of  the  parties.  They 
will  not  permit  the  carrier  to  be  defrauded  of  his 
just  compensation,  nor  subjected  to  unknown  hazards. 
Hence,  when  a  trunk,  containing  valuable  merchan- 
dise, and  nothing  else,  was  taken  on  board  a  steam- 
boat, and  deposited  with  the  ordinary  baggage,  and 
lost,  it  was  held  that  the  carrier  was  not  liable.^ 

'  Pardee  v.  Drew,  25  Wend.  R.  459;  Orange  County  Bank  v. 
Brown,  9  Wend.  85;  Gibbon  v.  Paynter,  4  Burr.  2298;  Bennett 
V.  Dutton,  10  N.  H.  481,  48G ;  Blancbard  v.  Isaacs,  3  Barbour's 
S.  Ct.  388 ;  Batson  v.  Donavan,  4  Barn.  &  Aid.  321 ;  Brooke  v. 
Pickwick,  4  Bing.  218;  Peixotte  v.  M'Laugblin,  1  Strobhart, 
4G8 ;  1  Sniitb's  Leading  Cases,  2G9.  In  tbe  former  of  these 
cases,  Nelson,  J.,  in  delivering  tbe  opinion  of  tbe  Court,  did  not 
put  it  upon  the  ground  that  the  passenger  intended  to  impose 
upon  the  carrier,  and,  under  the  cover  of  baggage,  obtain  the 
transportation  of  merchandise,  free  of  expense :  this,  be  said,  was 
not  material.  "  It  is  sufficient,''  he  observed,  "  that  such  is  the 
practical  effect  of  his  conduct.  Neither  the  captain,  nor  any  of 
the  bands  on  board  the  boat,  could  have  suspected  that  it  was  a 
box  of  costly  merchandise,  requiring  extraordinary  attention  and 
care.  They  could  regard  it  only  as  the  ordinary  baggage-trunk  of 
the  traveller,  containing  the  usual  personal  conveniences  belonging 
to  him  in  that  character,  falling  within  the  customary  fare,  and  to 


OF    THE    COXVETANGE    OF    PASSEXGEKS.      433 

454.  So,  too,  the  carrier  would  be  exempt  when 
the  baggage  consists  of  an  ordinary  travelling-trunk, 
in  which  there  is  a  large  sum  of  money.  Such 
money  is  not  considered  as  included  under  the  term 
"  baggage."^  Money,  however,  taken  hona  fide  for 
travelling  expenses  and  personal  use,  may  properly 
be  regarded  as  forming  a  partof  a  traveller's  baggage. 
The  passenger  is  not  bound  to  give  notice  of  the  con- 
tents of  his  trunk,  unless  particular  inquiry  be  made 
by  the  carrier.  But  it  must  be  fully  understood  that 
money  cannot  be  considered  as  baggage,  except  such 
as  is  hona  fide  taken  for  travelling  expenses  and  per- 
sonal use ;  and  to  such  reasonable  amount  only  as  a 
prudent  man  would  deem  necessary  and  proper  for 
such  purpose.  But  money  intended  for  trade  or 
business,  or  investment,  or  for  transportation,  or  any 
other  purpose  than  as  above  stated,  cannot  be  re- 
garded as  baggage.'^ 

be  stowed  away  in  the  place  where  such  articles  are  usually  de- 
posited. The  carrier  is  thus  doubly  wronged  : — 1,  deprived  of  his 
just  reward  for  carrying  the  goods,  and,  2,  prevented  from  exer- 
cising proper  precaution  against  the  dangers  to  which  the  property 
may  be  exposed." 

'  Orange  County  Bank  v.  Brown,  9  Wend.  85. 

■  Jordan  v.  The  Fall  River  Railroad  Company,  5  Gushing,  G9. 
This  was  an  action  against  the  railroad  company,  who  were  common 
carriers  of  freight  and  pas.sengcrs  from  Boston  to  Fall  River.  The 
plaintiff  purchased  two  tickets,  from  Boston  to  South  Braintrec, 
and  from  .South  Braintrce  to  Bridgewater.  Ilcr  trunk  contained 
articles  of  clothing,  a  bracelet,  and  three  hundred  and  twenty-five 
dollars  in  gold.  The  trunk  wa.s  delivered,  at  the  station  in  Boston, 
to  a  person  who  had  been  in  the  habit  of  receiving  the  baggage  of 
passengers.  It  was  therefore  held  that  a  delivery  to  him  was  a 
delivery  to  the  Company.  They  were  bound  to  keep  an  agent  at 
the  station  in  Boston,  to  receive  baggage ;  and  if  the  train  was  not 

28 


434  THE    LAW    OF    SHIPPING. 

455.  In  the  recent  English  case  of  The  Great 
Northern  Railway  Company  v.  Shepherd/  it  was 
held,  that  if  a  passenger  on  a  railway,  by  a  third- 
class  parliamentary  train,  carry  merchandise  packed 
up   with    his   personal   luggage,   the    railway  com- 


at  the  station,  and  the  baggage  was  delivered  to  the  baggage- 
master,  or  person  acting  in  that  capacity,  then  the  Company  was 
liable  for  it.  Fletcher,  J.,  in  delivering  the  opinion  of  the  Court, 
said  that  the  time  had  been,  in  this  country,  when  the  character 
and  credit  of  our  local  currency  were  such,  that  it  was  expedient 
and  needful  for  persons  travelling  through  different  States  to  pro- 
vide themselves  with  an  amount  of  specie  which  could  not  be  con- 
veniently carried  about  the  person,  to  defray  travelling  expenses. 
"  But  even  if  bills  are  taken  for  this  purpose,  it  may  be  convenient 
and  suitable  that  they  should  be,  to  some  amount,  placed  in  a 
travelliug-truuk,  with  other  necessary  articles  for  personal  use. 
This  would  seem  but  a  reasonable  accommodation  to  the  traveller. 
It  has  been  objected  that  the  carrier  will  not  expect  that  there 
will  be  money  with  the  baggage,  and  will  not,  therefore,  be  put 
upon  his  guard.  But,  surely,  a  carrier  may  very  naturally  under- 
stand and  expect  that  a  passenger  will  place  his  money  for  ex- 
penses, or  some  part  of  it,  in  his  trunk,  instead  of  carrying  it  all 
about  his  person ;  he  certainly  might  as  naturally  expect  this,  as 
that  there  would  be  jewels,  or  u  watch,  in  a  travelling-trunk,  for 

which  articles  a  carrier  has  been  held  responsible But 

in  the  present  case,  if  the  money  in  the  trunk  could  not  be  con- 
sidered as  a  part  of  the  plaintiflp's  baggage,  according  to  the  rule 
now  stated,  so  that  the  defendants  would  be  actually  responsible 
for  it  as  common  carriers,  yet,  as  the  trunk  was  in  the  custody  of 
the  defendants,  they  would,  upon  common  and  familiar  principles, 
be  answerable  for  gross  negligence,  wholly  irrespective  of  their 
liability  as  common  carriers.  This  principle  is  well  settled  in  the 
case  of  Brooke  v.  Pickwick,  4  Bing.  218;  Batson  v.  Donovan,  4 
B.  &  Aid.  21."  See,  also,  M'Gill  v.  Rowand,  3  Barr,  451 ;  Jones 
V.  Voorhees,  10  Ohio,  145,  150;  Hawkins  v.  IIoflFman,  6  Hill's 
R.  580;  Orange  County  Bank  v.  Brown,  9  Wend.  85;  Weed  v. 
Saratoga  &  S.  R.  R.  Co.,  19  Wend.  534. 
•  9  Eng.  Law  and  Eq.  477. 


OF    THE    CONVEYANCE    OF    PASSENGERS.      435 

pany  are  not  responsible  for  the  value  of  the  mer- 
chandise, if  the  luggage  be  lost  from  the  train. 
But  if  the  merchandise  be  so  packed  as  to  be  ob- 
viously merchandise  to  the  eye,  and  the  railway 
company  make  no  charge  or  special  bargain  for  the 
carriage,  they  will  be  responsible  for  the  loss.  By 
Act  of  Parliament,  each  third-class  23assenger  is 
allowed  56  lbs.  luggage.^  It  was  held  that  this  per- 
mits a  husband  and  wife,  travelling  together,  to  take 
112  lbs.  weight  of  luggage  betw^een  them. 

45G.  The  proprietors  of  public  conveyances  are 
not  responsible  for  injuries  to  the  persons  of  pas- 
sengers, unless  such  injuries  arose  from  their  negli- 
gence. If  they  have  done  all  that  human  foresight 
and  care  can  do  to  insure  the  safety  of  the  pas- 
sengers, they  are  not  liable  to  respond  in  damages.^ 
The  same  rule,  however,  does  not  apply  to  the 
baggage  of  passengers.  It  is  clear,  upon  the  autho- 
rities, that,  in  the  case  of  baggage,  the  carrier  is 
held  responsible  for  all  losses,  except  such  as  arise 
from  inevitable  accident,  or  the  enemies  of  the 
country.  Hence,  a  company,  using  steamboats  and 
railroads  for  the  transportation  of  passengers  and 
their  Ijaggage,  are  liable,  as  common  carriers,  for 
damages  ha))pening  to  the  baggage  of  passengers 
from  a  defect  in  the  vehicles  or  machinery  used, 
althou^rli  tlic  (;omi)any  is  not  chargeable  with  actual 
negligence,  or  want  of  skill,  or  want  of  care,  in 

'  7  anfl  8  Vict.,  c.  85,  s.  6. 

2  The  ('.inidcn  &  Ainhoy  R.  &  T.  Co.  v.  Burke,  1:]  WmJ.  (ill ; 
Story'.s  bailments,  001;  Stokes  v.  SaltoiLstall,  13  Peters,  181  j 
ante,  sec.  449,  and  authorities  there  cited. 


436  THE    LAW    OF    SHIPPING. 

securing  the  safety  of  the  baggage ;  and  this  upon 
the  ground  ahvady  stated,  that,  when  injury  happens 
to  it,  nothing  -will  excuse  the  company  but  inevitable 
accident,  arising  from  superhuman  causes,  or  the  acts 
of  the  enemies  of  the  country.  Nor  will  the  com- 
pany be  excused,  in  such  a  case,  under  a  notice  in 
the  usual  form,  that  "  All  baggage  is  at  the  risk  of 
the  owners,"  notwithstanding  the  notice  is  brought 
home  to  the  knowledge  of  the  passengers.  AVhat- 
ever  may  be  the  effect  of  such  notice  generally, — 
and  that  question  will  be  hereafter  considered, — it 
has  never  been  understood  to  excuse  the  carrier 
from  accidents  arising  from  the  breach  of  the  im- 
plied agreement,  in  every  contract  of  that  nature, 
that  the  vessel,  or  coach,  or  vehicle,  whatever  it  be, 
is  sufficient  for  the  business  in  which  it  is  employed.^ 

457.  A  common  carrier  has  two  distinct  liabilities, 
the  one  for  losses  by  accident  or  mistake,  where  he 
is  liable  as  an  insurer ;  the  other  for  losses  by  default 
or  negligence,  where  he  is  answerable  as  an  ordinary 
bailee.  He  may,  however,  restrict  his  liability  as 
insurer,  and  thus  protect  himself  against  misfortune, 
but  public  policy,  moving  upon  enlarged  and  liberal 
considerations,  requires  that  he  should  not  be  per- 
mitted to  stipulate  for  impunity  where  the  loss 
occurs  from  his  own  default  or  neglect  of  duty.'^ 


'  Camden,  &c.,  Co.  v.  Burke,  13  Wend.  611 ;  Lyon  v.  Molls, 
5  East,  428 ;  Dorr  v.  N.  J.  Steam  Nav.  Co.,  4  Sand.  S.  C.  R.  136. 

2  Clay  V.  Willan,  1  II.  lil.  298;  Evans  v.  Soulc,  2  M.  &  Selw. 
1;  Smith  v.  Home,  8  Taunt.  11.  146;  Bodenham  v.  Bennett,  4 
Price,  R.  34 ;  Down  v.  Froraont,  4  Camp.  R.  41 ;  Story's  Bail- 
ments, 8.  549  J  Dorr  v.  N.  J.  Steam  Nav.  Co.,  4  Sandford's  S.  C. 


OF    THE    CONVEYANCE    OF    PASSENGERS.      437 

458.  The  question  now  arises,  whether  the  carrier 
can  restrict  his  liability,  as  insurer,  by  a  public  no- 
tice, or  whether,  to  effect  that  object,  there  must  be 
an  express  special  contract.  By  the  common  law, 
the  carrier  may,  by  exj)ress  contract,  restrict  his 
liability.^  Many  of  the  modern  English  cases  went 
still  further,  and  held  that  he  might  restrict  his 
common  law  liability  by  a  public  notice,  where  the 
notice  was  brought  home  to  the  bailor,  and  his  as- 
sent could  be  presumed.^ 

459.  This  extension  of  the  doctrine,  however,  did 
not  meet  with  universal  favor,  and  the  Courts,  at  one 
period,  evinced,  and  wisely  evinced,  a  disposition  to 
hold  that  common  carriers  could  not,  by  their  no- 
tices, shake  off  the  responsibility  fastened  upon  them 
by  the  common  law.  There  is,  however,  it  is  be- 
lieved, no  case  in  which  the  right  of  a  carrier  thus  to 
limit  his  responsibility,  was  ever  by  express  decision 
denied.  Tlie  doctrine  produced  much  mischief  So 
many  questions  sprung  up,  as  to  what  should  be  the 
character  of  the  notice,  and  what  should  be  sufficient 
evidence  that  the  notice  came  to  the  knowledG;e  of 
the  bailor,  &c.,  that  Parliament  at  length  interposed 

R.  13G;  N.  Y.  Steam  Nav.  Co.  v.  Merchants'  Bank,  0  How.  R. 
344;  Austin  v.  The  Manchester,  &c.,  Ilailway  Co.,  IG  Jurist,  7Go. 
See  article  upon  the  Law  of  Carriers  in  the  American  Law  llegis- 
ter,  vol.  i.  (]'). 

'  Alcyn,  03 ;  4  Co.  84 ;  Note  to  Southcote's  Case,  4  Burr.  2301, 
per  Yates,  J.;  1  Vent.  100,  238;  Peake's  N.  P.  Cas.  150;  2 
Taunt.  271;  1  Htarkic's  II.  IHO. 

2  Nicholson  v.  AVillan,  fj  East,  r>07 ;  Kccr  v.  Same,  2  IIm<1.  53; 
Harris  v.  Packwood,  3  Taunt.  271;  liut.'ion  v.  Donovan,  4  B.  & 
Aid.  21. 


43S  THE     LAW    OF    SHIPPING. 

to  relieve  the  public  from  the  doubt  and  uncertainty 
that  hung  over  this  branch  of  the  law.  By  the  Car- 
riers' Act  of  11  Geo.  4,  and  1  Will.  4,  ch.  68,  passed 
July  23, 1830,  limitations  by  public  notice  were  pro- 
hibited, whilst  by  the  Gth  section  of  the  Act,  special 
contracts  or  agreements  remained  upon  the  same 
footing  they  occupied  before  its  passage.  This  Act 
restored,  in  effect,  the  ancient  and  salutary  rule  of 
the  common  law. 

460.  Such  is  the  state  of  English  law  upon  this 
subject,  and  our  American  law  occupies  the  same 
ground.  It  is  reasonable,  it  is  just,  and  in  con- 
formity with  sound  policy,  to  permit  the  carrier  by 
express  special  contract,  to  restrict  his  liability  as 
insurer,  and  protect  himself  against  misfortune, 
where  the  loss  does  not  occur  from  his  own  default 
or  neglect  of  duty.  "  The  necessity  of  allowing 
common  carriers  upon  the  seas  to  make  special  con- 
tracts with  the  owners  of  property  committed  to 
their  care,  was  early  seen  and  recognised,  and  ex- 
ceptions in  bills  of  lading,  restricting  the  carriers' 
liability,  have  from  time  to  time  been  added.  The 
same  necessity  exists  as  to  the  domestic  commerce 
in  this  vast  country  of  ours,  where  the  internal 
trade  is  so  extensive,  reaching  as  it  does,  over  the 
greater  part  of  a  continent,  traversing  rivers  in 
length  equal  to  the  distance  across  the  Atlantic, 
stretching  out  over  large  inland  seas,  where  the 
amount  of  property  annually  carried  has  swollen  up 
to  hundreds  upon  hundreds  of  millions  of  dollars, — 
where  there  exist  extensive  lines  of  transportation, 
reaching  through  different  States,  and  controlled  in 


OF    THE    CONVEYANCE    OF    PASSENGERS.       439 

different  parts  by  the  several  owners,  and  where  in- 
surance companies  are  organized  for  the  protection 
of  the  owners  of  the  property  thus  transported."^ 

'  4  Sandford's  Sup.  C  R.  136 ;  Campbell,  J.,  overruling  Gould  v. 
Hill,  2  Hill's  R.  G23 ;  N.  J.  St.  Nav.  Co.  v.  Merchants'  Bank,  6 
How.  (U.  S.  R.)  344 ;  Wills  v.  The  St.  Nav.  Co.,  2  Comstock, 
204;  Gordon  v.  Walker,  8  Serg.  &  Raw.  533.     This  latter  case 
was  a  suit  against  the  defendant  as  a  common  carrier,  there  being 
an  exception  in  the  bill  of  lading  of  the  dangers  of  the  river,  &c. 
Tilghman,  C  J.  said,  "  If  the  case  had  rested  solely  on  the  written 
contract,  there  would  have  been  much  to  say  in  favor  of  the  deci- 
sion of  the  Court,  because,  be  the  common  law  what  it  may,  the 
parties  have  a  right  to  alter  or  modify  it  by  special  contract,  and 
when  they  have  done  so,  the  question  is,  What  is  the  construction 
of  the  contract  ?"     See  the  following  recent  English  cases :  Austin 
v.  The  Manchester,  &c.,  Railway  Co.,  21  Law  J.  (C.  P.)  R.  179, 
S.  C.  10  Jurist,  703 ;  Chippendale  v.  The  Lancashire,  &c.,  Co., 
21  Law  J.  R.  (2  R.)  347 ;  Shaw  v.  The  York,  &c.,  Co.,  20  Id. 
440;  Austin  v.  The  Manchester,  &c.,  Co.,  18  Ibid.  181;  Carr  v. 
The  Lancashire,  &c.,  Co.,  21  Law  J.  R.  201.     In  the  case  of 
Chippendale  v.  The  Lancashire  Railway  Co.  (21  Law  J.  R.  21),  it 
was  held  that  the  following  ticket,  given  by  the  Company,  and  signed 
by  the  bailor  or  his  agent,  formed  a  special  contract  between  the 
parties,  and  exempted  the  Company  from  all  risk  whatever  of 
damage  to  the  animals  during  the  journey  :   "  N.  B.  This  ticket  is 
issued  subject  to  the  owner  undertaking  all  risks  of  conveyance 
whatever,  as  the  Company  will  not  be  responsible  for  any  injury 
or  damage,  howsoever  caused,  occurring  to  live  stock  of  any  de- 
scription travelling  upon  the  Lancashire  and  Yorkshire  Railway 
Company,  or  in   their  vehicles."     Notwithstanding,  the  truck  in 
which  the  animals  were  conveyed  was  found  by  the  jury  to  be  so 
defectively  constructed,  as  to  be  un6t  and  unsafe  for  the  purpose 
of  conveying   cattle  along  the   lino,  the  Court  held,  that  by  the 
tcrm.s  of  the  ticket  it  was  to  be  understood  that  the  owner  i)f  flic 
cattle   took  upon  himself  all  risk  whatever  of  damage  to  them 
during  the  journey,  and,  consequently,  that  the  Company  were 
fully  protected.     The  Court,  however,  studiously  confined  their 
opinion  to  the  particular  case,  and  laid  down  no  general  rule.     "  I 


440  THE    LAW    OF    SHIPPING. 

4C1.  The  doctrine  that  the  cjirrier  may  restrict 
liis  liability  by  express  special  contract,  has  its  basis 
in  the  common  law.  It  is  the  American  doctrine. 
It  is  productive  of  no  evil  consequences.  It  throws 
over  the  subject  neither  doubt  nor  uncertainty.  It 
impairs  no  right.  But  the  extension  of  the  doctrine 
to  public  notices,  finds  no  foundation  in  the  common 
law,  is  supported  by  no  sound  reason,  and  is  produc- 
tive of  manifest  mischief.  The  law,  from  motives  of 
policy,  throws  upon  the  carrier  grave  responsibilities. 
Shall  he  rid  himself  of  these  res^Donsibilitics  by  pub- 
licly declaring  that  he  will  not  be  responsible  ?  And 
shall  the  assent  of  the  bailor  to  that  declaration  be 
implied  from  the  simple  circumstance  that  know- 
ledge of  it  is  brought  home  to  him  ?  The  argument 
is,  that  when  a  party  delivers  goods  to  be  carried, 
after  seeing  a  notice  that  the  carrier  intends  to  limit 
his  resjDonsibility,  his  assent  to  the  terms  of  the  no- 
tice may  be  implied.  But  this  argument  entirely 
overlooks  a  very  important  consideration.  Notwith- 
standing the  notice,  the  owner  has  a  right  to  insist 
that  the  carrier  shall  receive  the  goods  subject  to  all 
the  responsibilities  incident  to  his  employment.  If 
the  delivery  of  goods  under  such  circumstances  au- 

takc  it,"  said  Earlc,  J.,  "  that  the  carriage  was  fit  for  the  journey, 
and  fit  for  the  weight,  and  that  the  damage  has  entirely  arisen 
from  the  freight  being  living  animals,  who  made  an  eff'ort  to  escape, 
and  so  injured  themselves.  That  seems  to  me  to  be  a  risk  for 
which  the  Company  peculiarly  said  that  they  would  not  be  respon- 
sible. I  think  that  a  limitation,  however  wide  in  its  terms,  being 
in  respect  of  live  stock,  is  reasonable."  The  doctrine  stated  in  the 
text  is  not  recognised  in  Pennsylvania.  General  notices  limit  the 
responsibility  of  the  carrier.  See  Camden  &  Amboy  R.  Co.,  v. 
Baldauf,  16  Penn.  State  II.  G7 ;  Angell  on  Carriers,  525-610. 


OF    THE    CONVEYANCE    OF    PASSENGERS.      441 

thorizes  an  implication  of  any  kind,  the  presumption 
is  as  strong,  to  say  the  least,  that  the  owner  intended 
to  iiisist  on  his  legal  rights,  as  it  is  that  he  was 
willing  to  yield  to  the  wishes  of  the  carrier.' 

4G2.  The  carrier  is  in  the  exercise  of  a  sort  of 
public  office,  and  has  public  duties  to  perform,  from 
which  he  should  not  be  permitted  to  exonerate  him- 
self without  the  assent  of  the  parties  concerned. 
And  this  is  not  to  be  implied  or  inferred  from  a 
general  notice  to  the  public,  limiting  his  obligation, 
which  may  or  may  not  be  assented  to.  He  is  bound 
to  receive  and  carry  all  the  goods  offered  for  trans- 
portation, subject  to  all  the  responsibilities  incident 
to  his  employment,  and  is  liable  to  an  action  in  case 
of  refusal.  And  we  agree  with  the  Court  in  the  case 
of  Hollistcr  V.  Nowlen,  that,  if  any  implication  is  to 
be  indulged  from  the  delivery  of  the  goods  under  the 
general  notice,  it  is  as  strong  that  the  owner  in- 
tended to  insist  upon  his  rights,  and  the  duties  of 
the  carrier,  as  it  is  that  he  assented  to  their  qualifi- 
cation. The  burden  of  proof  lies  on  the  carrier,  and 
notliiug  short  of  an  express  stipulation  by  parol  or 
in  writing  should  be  permitted  to  discharge  him  from 
duties  which  the  law  has  annexed  to  his  employ- 
ment.    The  exemption  from  these  duties  should  not 


'  Hollistcr  V.  Nowlen,  10  Wend.  234  j  N.  J.  St.  Nav.  Co.  v. 
Mcr.  Bank,  G  How.  344;  Dorr  v.  N.  J.  St.  Nav.  Co.,  4  Sand.  S. 
C.  K.  I3(Jj  Halo  V.  The  Same,  15  Conn.  539.  By  entering  into 
a  special  contract,  the  owner  of  the  goods  virtually  agrees  that  the 
carrier,  as  to  the  particular  transaction,  is  not  to  be  regarded  as 
in  the  cxerci.se  of  his  public  cn)ploynicnt.  lie  stands  in  the  posi- 
tion of  an  ordinary  bailee  for  hire. 


442  THE     LAAY    OF     SHIPPING. 

depeiKl  upon  implication  or  inference,  founded  on 
doubtful  and  conllictiug  evidence;  but  sbould  be 
specific  and  certain,  leaving  no  room  for  controv-ersy 
between  the  .parties/ 

463.  Common  carriers  are  bound  to  deliver  to  each 
passenger,  at  the  end  of  his  journey,  liis  trunk  or 
baggage.  The  whole  duty  in  this  respect  rests  upon 
the  carrier.  The  exercise  of  ordinary  care  in 
marking  the  baggage,  entering  it  upon  a  way-bill, 
and  delivering  a  check-ticket  to  the  owner,  renders 
easy  its  discharge.  The  passenger  is  not  required  to 
expose  his  person  in  a  crowd,  or  endanger  his  safety 
in  the  attempt  to  designate  or  claim  his  property. 
If,  however,  the  delivery  should  be  conformable  to  a 
well-established  and  notorious  usage,  known  to  the 
j)assenger,  the  carrier  would  probably  be  discharged. 
He  is  bound  to  make  the  delivery,  but  the  particular 
mode  in  which  this  shall  be  done  may  well  be  deter- 
mined by  the  usage.^ 

464.  The  same  rules  are  applied  to  passage-money, 
as  are  established  on  the  subject  of  freight.  Hence, 
if  it  is  paid  in  advance,  and  the  passenger  is  not 
carried  to  the  place  of  destination,  by  reason  of  any 
event  not  imputable  to  him,  the  passage-money  is  to 
be  repaid,  unless  there  is  a  special  agreement  to  the 
contrary.      This  is  the    admitted   doctrine   of  the 

1  N.  J.  St.  Nav.  Co.  V.  Mer.  Bank,  6  How.  344,  382 ;  Nelson, 
J.,  1  Smith's  Leading  Cases,  279. 

*  Cole  V.  Goodwin,  19  Wend.  251 ;  Brown  v.  Balston,  9  Leigb; 
Valin  on  the  French  Ord.,  torn.  1,  p.  530 ;  2  P^sp.  693 ;  Abbott  on 
Shipp.  463. 


OF    THE    CONVEYANCE    OF    PASSENGERS.      443 

maritime  law,  and  is  in  conformity  with  tlie  esta- 
blished principles  of  the  common  law/ 

• 

4G5.  Strictly,  passage-money  is  not  due  before  the 
passenger  arrives  at  the  port  of  destination.  The 
period  of  payment,  however,  may  be  controlled  by 
contract,  or  established  by  usage.  In  point  of  fact, 
a  distinction  is  usually  made  between  freight  and 
passage-mone}^,  the  latter  being  pre-paid,  and  the 
former  not  until  the  termination  of  the  voyage.  If 
no  contract  is  made,  the  usage  must  control  the  rights 
and  duties  of  the  parties. 

4GG.  In  the  recent  case  of  Cope  v.  Dodd,^  the  pas- 
senger paid  in  advance  the  price  of  his  passage,  from 
Philadelphia  to  Liverpool.  The  captain  gave  him 
a  receipt  for  the  same,  which  expressed  the  money 
to  have  been  paid  for  his  cabin  passage  in  the  ship 
Thomas  P.  Cope,  "to  sail  to-day  for  Liverpool." 
This  was  held  to  be  a  contract  to  carry  the  passen- 
ger to  the  destined  port.  And  as  the  ship  was  lost 
on  the  voyage,  he  was  entitled  to  recover  back  the 
amount  paid  for  his  passage.  The  ship-owners  en- 
deavored to  show  that  there  was  an  estaljlished 
custom  ]jy  wliich,  under  circumstances  like  those  in 
the  present  case,  the  passage-money  was  not  to  be 
refunded.  The  Court  held,  that  such  custom  could 
not  ])e  proved  by  single  isolated  instances.  A  usage 
which  is  to  govern  a  question  of  right,  should  be  so 

'  Ilnwlniid  V.  Tlio  Urig  Tiavinia,  1  Peters'  Ad.  R.  12G;  Griggs 
V.  Austin,  :;  J'ick.  20;  Watson  v.  Day  Binck,  3  Johns.  II.  335; 
Cope  V.  Dndd,  1  Harris,  33;  Lemon  v.  Gordon,  8  Carr  &  Pay. 
392;  Barker  v.  IIodg.son,  3  M.  &  S.  2G7j  MoUoy,  250,  2G0. 


444  THE    LAW    OF    SUIPPING. 

certain,  unirorni,  niul  notorious,  as  i)roba1)ly  to  be 
known  to  anil  understood  by  the  parties,  as  entering 
into  their  contract.* 


4G7.  The  master  of  a  ship  has,  of  course,  no  lien 
on  the  passenger  liiniself,  or  the  clothes  which  he  is 
actually  wearing,  when  he  is  about  to  leave  the 
vessel.  But  he  has  a  lien  on  any  other  property  he 
may  have  on  board.  There  is  no  reason  why  there 
should  not  be  the  same  lien  for  the  recovery  of 
passage-money,  as  for  the  recovery  of  freight.  The 
lien  attaches  to  the  luggage  of  the  passenger,  and 
the  master  may  detain  it  until  the  passage-money  is 
paid.^ 

468.  The  general  rights  of  passengers,  in  ships 
upon  the  high  seas,  whether  those  rights  are  defined 
by  special  contract,  or  are  derived  from  the  law,  may 
be  successfully  asserted  by  the  judicial  tribunals. 
But  it  has  been  found  necessary,  both  in  England 
and  this  country,  in  order  to  repress  the  cupidity  and 
recklessness  of  ship-owners,  to  invoke  the  aid  of 
special  legislation.  We  propose  to  close  this  chapter 
by  a  concise  statement  of  the  several  Acts  of  Con- 
gress upon  this  subject.  It  must  be  understood, 
however,  that  the  passenger  laws  of  the  United 
States  apply  only  to  passengers  whilst  on  their 
voyage,  and  until  they  shall  have  landed.  After 
the  landing  of  passengers,  the  laws  of  the  United 

'  Cope  V.  Dodd,  1  Harris,  3.3 ;  U.  S.  v.  Duval,  Gilp.  356  j  Dean 
V.  Swoop,  2  Bin.  72. 

'  Wolf  V.  Summers,  2  Camp.  N.  P.  R.  631 ;  Abbott  on  Sbipp., 
p.  288. 


OF    THE    COXYEYANCE    OP    PASSENGERS.      445 

States  do  not  come  in  conflict  with  the  laws  of  a 
State,  which  oblige  security  to  be  given  against  their 
becoming  chargeable  as  paupers;  and  for  their  re- 
moval out  of  the  State,  in  the  event  of  their  having 
become  so  chargeable.^  But  any  State  law,  which 
imposes  a  tax  or  duty  on  passengers,  arriving  at  the 
ports  of  such  State,  is  in  conflict  with  the  powers  of 
Congress,  and  repugnant  to  the  Constitution  of  the 
United  States.^ 

469.  By  a  recent  Act,'  it  is  provided,  that  if  the 
master  of  any  vessel,  owned  in  whole  or  in  part  by  a 
citizen  of  the  United  States  of  xVmerica,  or  by  a 
citizen  of  any  foreign  country,  takes  on  board  such 
vessel,  at  any  foreign  port  or  place,  a  greater  number 
of  passengers  than  in  the  following  proportion  to  the 
space  occupied  by  them,  and  appropriated  for  their 
use,  and  unoccupied  by  stores,  and  other  goods,  not 
being  the  personal  luggage  of  such  passengers,  that 
is  to  say,  on  the  lower  deck  or  platform  one  passen- 
ger for  every  fourteen  clear  superficial  feet  of  deck, 
and  on  the  orlop  deck  (if  any)  one  passenger  for 
every  thirty  such  superficial  feet,  in  all  cases,  with 
intent  to  Ijring  such  passengers  to  the  United  States 
of  America,  and  shall  leave  such  port  or  place  with 
the  same,  and  ))ring  the  same,  or  any  number  there- 
of, within  the  jurisdiction  of  the  United  States  afore- 
said, or  if  any  such  master  of  vessel  shall  take  on 

'  City  of  New  York  v.  Milii,  1 1  Tutcrs'  R.  102. 

«  Passenger  Cases,  7  How.  11.  402,  470,  5.57. 

"Act  of  22(1  Feb.,  1847,  cinq..  Ki,  s.  I.  ^^^r  tlio  cases  of 
The  Creole  and  The  Acli.sab,  an  abstract  of  wbicb  is  given  in  2 
Wbart.  Dig.  655. 


446  THE    LAW    OF    SHIPPING. 

board  his  vessel,  at  any  port  or  place  witliin  the 
jurisdiction  of  the  United  States  aforesaid,  any 
greater  number  of  passengers  than  the  proportions 
aforesaid  admit,  with  intent  to  carry  the  same  to  any 
foreign  port  or  place,  every  such  master  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  beibre  any  Circuit  or  District  Court  of 
the  United  States,  shall,  for  each  passenger  taken  on 
board  beyond  the  above  proportions,  be  fined  in  the 
sum  of  fifty  dollars,  and  may  also  be  imprisoned  for 
any  term  not  exceeding  one  year. 

470.  This  section,  that  is,  the  first  section  of  the 
Act  of  1847,  was  amended  by  the  Act  of  March  17, 
1848,^  so  that,  when  the  height  or  distance  between 
the  decks  of  the  vessel  referred  to  in  the  said  section 
shall  be  less  than  six  feet  and  not  less  than  five  feet, 
there  shall  be  allowed  to  each  passenger  sixteen 
clear  superficial  feet  on  the  deck :  and  if  the  master 
of  any  such  vessel  shall  take  on  board  his  vessel,  in 
any  port  of  the  United  States,  a  greater  number  of 
passengers  than  is  allowed  by  this  section,  that  is, 
the  eighth  section  of  the  Act  of  1848,  with  the  in- 
tent specified  in  the  first  section  of  the  Act  of  1847, 
or  if  the  master  of  any  such  vessel  shall  take  on 
board  at  a  foreign  port,  and  bring  within  the  juris- 
diction of  the  United  States,  a  greater  number  of 
passengers  than  is  allowed  by  this  section  (the  8th 
of  the  Act  of  1848),  such  master  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  there- 
of shall  be  punished  in  the  manner  provided  for  the 
punishment  of  persons  convicted  of  a  violation  of  the 

'  Chap.  41,  sec.  8. 


OF    THE    CONVEYANCE    OF    PASSENGERS.      447 

Act  of  '47  ;  and  in  computing  the  number  of  passen- 
gers on  board  such  vessel,  all  children,  under  the 
age  of  one  year,  at  the  time  of  embarkation,  are  ex- 
cluded from  the  computation.  By  the  10th  section 
of  this  Act,  so  much  of  the  first  section  of  the  Act  of 
March  2,  1819,'  or  any  other  Act  that  limits  the 
number  of  passengers  to  two  for  every  five  tons,  is 
repealed. 

471.  It  is  also  provided,  that  if  any  vessel  owned 
as  aforesaid,  has  more  than  two  tiers  of  berths,  or  if 
the  interval  between  the  floor  and  the  deck  or  plat- 
form beneath  is  not  at  least  six  inches,  and  if  the 
berths  are  not  well  constructed,  or  if  the  dimensions 
of  such  berths  are  not  at  least  six  feet  in  length,  and 
at  least  eighteen  inches  in  width,  for  each  passenger, 
the  master  of  such  vessel  shall  forfeit  and  pay  the 
sum  of  five  dollars  for  each  and  every  passenger  on 
board  of  the  vessel  on  such  voyage,  to  be  recovered 
by  the  United  States  in  any  Circuit  or  District  Court 
of  the  United  States,  where  such  vessel  may  arrive, 
and  from  which  she  sails.^  For  all  the  purposes  of 
the  Act  of  1847,^  two  children,  each  being  under  the 
age  of  eiglit  years,  are  deemed  equal  to  one  passen- 
ger. Children  under  the  age  of  one  year  are  ex- 
cluded, as  before  observed,  in  computing  the  number 
of  passengers.  It  should  be  here  observed,  that  the 
penalties  denounced  l^y  the  Act  of  1847,  arc  declared 
to  be  liens  on  Uu)  vessel  or  vessels  incurring  them, 
and  they  may  Ije  lil)elled  and  sold,  upon  their  arrival 
within  the  jurisdiction  of  a  District  Court  of  the 
United  States.'* 

»  Ch.  46.  »  Act  of  Feb.  22,  1847,  sec.  8. 

Mbid.  *Sec.  5. 


448  THE    LAW    OF    SIIIPriNG. 

472.  The  Act  of  1848'  has  imposed  many  and 
new  regiihitions  upon  the  masters  of  passenger-ves- 
sels, having  for  their  object  the  comfort  and  security 
of  the  passengers.  We  do  not  propose  to  detail  with 
particularity  all  the  provisions  of  this  Act.  We  shall 
only  refer  to  them  in  a  brief  and  cursory  manner. 
The  first  section  requires  that  all  vessels,  whether  of 
the  United  States  or  any  other  country,  having  suf- 
ficient capacity  according  to  law  for  fifty  or  more 
passengers  (other  than  cabin  passengers)  shall,  when 
employed  in  transporting  such  passengers  between  the 
United  States  and  Europe,  have  on  the  upper  deck,  for 
the  use  of  such  passengers,  a  house  over  the  passage- 
way leading  to  the  apartment  allotted  to  such  pas- 
sengers below  deck,  constructed  and  secured  in  the 
manner  therein  described.  All  vessels  so  employed, 
and  having  the  capacity  to  carry  one  hundred  and 
fifty  or  more  passengers,  are  required  to  have  two 
such  houses.  It  is  provided,  however,  that  vessels 
having  three  permanent  decks,  may  substitute  booby 
hatches  for  such  houses. 

473.  Provision  is  also  made  for  ventilators/  for 
cooking-ranges  on  deck,  for  victualling  passenger- 
vessels,  &c.,  with  adequate  penalties  annexed.  The 
vast  multitudes  that  annually  leave  the  shores  of 
Europe  for  the  United  States,  crowding,  as  they  do, 
the  decks  of  every  vessel,  will  at  once  suggest  the 
wisdom  and  humanity  of  the  various  Acts  of  Con- 
gress that  have  been  passed  to  secure  and  promote 
their  health  and  comfort. 

»  March  17,  chap.  41.  ^  y^j^  ^^^.^  2. 


449 


CHAPTER  y. 


OF  THE  CONVEYANCE  OF  GOODS  IN  A  GENERAL 

SHIP. 


474.  A  TRADixG-SHiP  is  employed  by  virtue  of  two 
distinct  species  of  contract.  First,  the  contract  by 
which  an  entire  ship,  or,  at  least,  the  principal  part 
thereof,  is  let  for  a  determined  voyage  to  one  or 
more  places.  This  is  usually  done  by  a  written 
instrument,  signed  and  sealed,  and  called  a  charter- 
party.  Secondly,  the  contract  by  whicli  the  master 
or  owners  of  a  ship,  destined  on  a  particular  voyage, 
engage  separately  with  a  number  of  persons,  uncon- 
nected with  each  other,  to  convey  their  respective 
goods  to  the  place  of  the  ship's  destination.  A  ship 
employed  in  this  manner  is  usually  called  a  general 
ship.'  Tlie  nature  of  this  latter  contract,  and  the 
rights  and  duties  growing  out  of  it,  will  form  the 
subject  of  discussion  in  this  chapter. 

475.  It  should  be  observed  that  the  owners  are 
bound  \)y  every  lawful  contract  made  by  the  master 
relative  to  the  usual  employment  of  the  ship.  Tlie 
law  gives  the  shipper  of  goods  a  twolbld  remedy : 
1,  against   the  owners,  and,  2,  against    tlie  master 

'  Abbott  on  Ship]!.,  p.  15G. 

2'J 


450  THE    LAW    OF    SHIPPING. 

porsoiially.  The  ship,  too,  is  specifically  bound,  in 
accordance  with  the  ancient  and  wise  policy  of  the 
general  maritime  law: — "Xr  hatcl  est  ohliye  d,  la 
marchandise,  et  la  marcliandlse  aii  hatel."^ 

47G.  In  the  contract  which  we  are  now  consider- 
ing,— that  is,  the  contract  for  conveyance  in  a  gene- 
ral ship, — the  bill  of  lading  is  commonly  the  evi- 
dence of  the  contract.  The  cargo  being  put  on  board, 
the  master  executes  two  or  more  bills  of  lading. 
The  shipper  receives  one  of  these  for  his  own  use, 
another  goes  to  the  consignee  or  correspondent,  and 
the  master  retains  the  third,  which  is,  in  general, 
legal  evidence  of  the  specific  cpiantity  of  merchan- 
dise shipped.^ 

477.  It  is  not  essential  to  the  validity  of  the 
contract  that  the  bill  of  lading  should  have  been 
signed  by  the  master  himself.  It  is  equally  bind- 
ing upon  all  parties,  if  signed  by  his  authorized 
agent.  And  if  the  authority  of  the  agent  does  not 
appear  upon  the  bill  of  lading,  he  may  be  called 
as  a  witness  to  prove  such  authority.^     It  must  be 

'  ''The  ship  is  bound  to  the  merchanclise,  and  the  merchandise 
to  the  ship."     Cleiarc,  Us.  et  Coustumcs  de  la  Mer,  p.  72. 

2  Woolrych's  Com.  Law,  59. 

»  Putnam  v.  Tillotson,  1.3  Mctcalf,  517.  It  was  held  in  this 
case,  that  where  goods  are  ordered  to  be  sent  to  a  distant  pur- 
chaser, a  delivery  to  a  carrier  appointed  by  the  consignee  vests  the 
property  in  the  purchaser.  Vide,  as  to  the  same  point,  Stanton 
V.  Eager,  16  Pick.  467.  So,  a  delivery  to  a  common  carrier,  in 
the  usual  course  of  business,  when  no  carrier  is  named  by  the 
purchaser,  is  a  good  constructive  delivery  to  vest  the  property  in 
the  vendee.     Also,  such  carrier,  who  has  executed  a  bill  of  lading. 


OF    THE    CONVEYANCE    OF    GOODS,    ETC.      451 

understood  that  the  simple  fact  of  a  person  being 
the  master  of  a  vessel  does  not,  i)er  se,  clothe  him 
Avith  the  authority  to  bind  the  owner  by  signing  a 
bill  of  lading  for  goods  received  on  freight.  But 
this  authority  he  must  have,  to  make  the  contract 
binding  on  the  owners.  He  may  have  it,  however, 
either  by  express  delegation,  or  it  may  be  implied 
from  the  usual  employment  of  the  vessel.  The 
master  of  a  vessel  employed  in  the  freighting  busi- 
ness, who  is  in  the  habit  of  receiving  goods  for  hire 
and  signing  bills  of  lading,  has  authority  to  bind  the 
owner  as  much  as  if  the  authority  were  expressly 
given.' 

by  himself  or  his  authorized  agent,  becomes  thereupon  answerable 
to  the  consignee;  and,  in  case  of  non-delivery,  the  action  may  be 
brought  by  the  consignee.  As  to  the  first  point,  see  Dutton  v. 
Solomonsoii,  3  Bos.  &  Pul.  582,  and,  as  to  the  last,  Dawes  v. 
Peck,  8  T.  11.  330. 

1  Nichols  V.  De  Wolf,  1  N.  J.  Rep.  277.  ''  The  owner,"  said 
Greene,  J.,  in  giving  the  opinion  of  the  Court  in  this  case,  "  can- 
not reap  the  benefit  of  the  captain's  contracts  without  likewise 
being  liable  for  the  losses,  if  the  contracts  are  made  within  the 
scope  of  the  captain's  agency.  But  there  are  various  kinds  of 
voyages.  A  man  may  send  his  vessel  to  procure  a  cargo  on  his 
own  account,  and  in  such  cases  the  master  has  no  power  to  take 
freight ;  or  he  may  send  his  vessel  to  get  freight,  and  then  the 
very  business  is  to  procure  goods  on  freight,  and  sign  bills  of 
lading,  and  the  signature  binds  the  owner.  The  vessel  may  be 
employed  in  ])oth  ways.  She  may  be  sent  to  procure  goods  on 
account  of  the  owner,  and,  if  she  be  not  fully  laden  on  owner's 
account,  to  iill  up  with  gootls  upon  freight.  By  such  inridcntal 
contracts  for  freight  tlie  owner  is  bouml.      Did  the  defendant's 

vessel  sustain   this  twofold  character? The  (jiustinn  in 

this  case  is,  whether  such  an  authority  can  be  infeircd  Ik  mi  (lie 
usual  employment  of  the  vessel.  If  the  captain  was  in  tlie  hahit 
of  taking  goods  on  freight,  and  of  signing  bills  of  lading,  an<l  tlie 


452  THE    LAW    OF    SHIPPING. 

478.  It  is  inciclentiil  to  tlie  general  authority  of 
the  master  to  make  all  contracts  relative  to  the 
usual  employment  of  the  ship.  He  is  the  general 
agent  of  the  owner  for  this  purpose.  All  parties 
concerned  have  a  right  to  assume  that  the  agent 
has  authority  to  do  all  that  is  necessary,  within  the 
scope  of  his  employment.  But  the  master  of  a  ship 
has  no  general  authority,  as  such,  to  sign  a  bill  of 
lading  for  goods  which  are  not  put  on  board  the 
vessel.  It  follows,  therefore,  that  the  owners  of  the 
ship  are  not  responsible  to  parties  taking  a  bill  of 
lading  which  has  been  signed  by  the  master  without 
receiving  the  goods  on  board. ^  But  if,  through  in- 
advertence, or  otherwise,  the  bill  of  lading  is  signed 
before  the  goods  are  on  board,  upon  the  faith  and 
assurance  that  they  are  at  hand,  as  if  they  are  re- 
ceived on  the  wharf,  ready  to  be  shipped,  or  in  the 
ship-owner's  warehouse,  or  in  the  shipper's  own 
warehouse,  at  hand  and  ready,  and  afterwards  they 
are  placed  on  board,  as  and  for  the  goods  embraced 
in  the  bill  of  lading,  as  against  the   shipper  and 

defendant  knew  this,  the  defendant  ought  not  to  be  allowed  to 
deny  the  captain's  authority.  And  this  authority  cannot  be  in- 
ferred from  one,  or  two,  or  three  instances  of  such  dealing;  but  a 
sufficient  number  must  be  shown  to  prove  that,  in  the  sense  of  the 
law,  this  was  the  usual  employment  of  the  vessel.  If  the  captain, 
upon  his  own  risk,  was  in  the  habit  of  taking  small  packages  or 
boxes  without  giving  bills  of  lading,  the  owner  is  not  bound. 
This  is  not  uufrequcntly  done  by  stage-drivers  and  captains  of 
steamboats,  who  take  small  packages,  and  receive  the  freight  or 
compensation  for  carrying,  without  any  liability  on  the  part  of 
the  steamboat  or  stage  company." 

•  Grant  v.  Norway,  2  Eng.  Law  and  Eq.  R.  337 ;  Lickbarrow 
V.  Mason,  2  T.  R.  77.  See  also  Mechanics'  and  Traders'  Bank  v. 
Gordon,  5  Louis.  R.  G04. 


OF    THE    CONVEYANCE    OF    GOODS,    ETC.      453 

master,  the   bill  of  lading  will   operate  on   these 
goods  by  way  of  relation  and  estoppel.* 

479.  It  is  a  general  principle,  familiar  to  all,  that 
a  written  contract  cannot  be  varied  by  parol  evi- 
dence of  instructions  given  before  or  at  the  time  the 
contract  is  executed,  because  all  the  terms  of  the 
agreement  are  deemed  to  be  expressed  and  fixed  by 
the  written  instrument.  This  principle,  in  its  appli- 
cation to  a  bill  of  lading,  is  somewhat  modified,  and 
because  of  the  peculiar  character  of  that  instrument. 
Ordinarily,  a  bill  of  lading  partakes  of  a  twofold 
character.  It  is  both  a  receipt  and  a  contract.  It 
is  a  receipt  as  to  the  number  of  bushels,  or  the 
quantity  of  the  article  put  on  board  the  vessel ;  and 
it  is  a  contract  to  deliver  the  same  at  a  certain 
place,  and  to  a  certain  party.  As  far  as  it  is  a 
receipt,  it  is,  without  doubt,  open  to  explanation 
between  the  parties  to  it.  The  person  giving  it 
may  prove  that  he  was  mistaken  in  the  quantity'  of 
goods  delivered  to  him.  But  there  is  no  case  which 
goes  the  length  of  holding  that  the  master  shall  be  per- 
mitted to  allege,  not  only  that  he  did  not  receive  the 
quantity  of  goods  specified,  but  also  that  there  was 
a  mistake  in  tlio  l)ill  of  lading,  in  stating  the  desti- 
nation of  the  property  intrusted  to  him.     If  the  bill 


'  llowley  V.  Bigclow,  \'2  I'ick.  |{.  .'!(I7.  Wlun  a  party  wlin 
has  advanced  money  upon  a  liill  (if  lading,  wliicli  lie  afterwards 
ha.s  reason  to  believe  is  a  forgery,  permits  the  supposed  forger  to 
raise  means  from  a  tliird  ptr.son  to  reimburse  the  advances  made, 
and  the  bill  of  lading  proves  to  be  a  forgery,  it  will  be  rogardcvl 
as  a  fraud  upon  the  tliird  person,  by  wliich  (lie  party  who  made 
the  advance  will  not  be  allowed  to  benefit  himself,  ('hambcrliii 
V.  Milbauk,  G  Louis.  U.  383. 


454  THE    LATT    OF    SHIPPING. 

of  lading  state  that  the  property  was  to  go  to  Liver- 
pool, the  master  cannot  prove  that  by  verbal  agree- 
ment it  was  to  be  sent  to  London.  That  would  be 
a  distinct  variation  of  the  contract,  of  which  parol 
evidence  cannot  be  admitted.  The  true  distinction 
is  the  one  we  have  already  mentioned,  namely,  as  a 
receipt,  the  bill  of  lading  may  be  varied  and  ex- 
plained by  parol ;  as  a  contract,  it  cannot.^ 

•  Wolfe  V.  Myers,  3  Sand.  (N.  Y.)  Sup.  Ct.  R.  7  ;  Bond  v. 
Frost,  6  Louis.  R.  801 ;  The  Ninetta,  Crabbc's  R.  534 ;  Bates  v. 
Todd,  1  Moo.  &  Rob.  106;  Berkley  v.  Watling,  7  Ad.  &  El.  29; 
Howard  v.  Tucker,  1  B.  &  Ad.  712;  Pickard  v.  Scars,  6  Ad.  & 
E.  474.  In  the  case  of  Portland  Bank  v.  Stubbs,  G  Mass.  422, 
one  of  the  points  was,  whether  the  plaintiffs  could  be  admitted  to 
contradict  the  bill  of  lading  in  that  case,  by  proving  that  no  freight 
had  been  paid  for  the  salt.  "If  Stubbs,  the  consignee,"  said 
Chief  Justice  Parsons,  "  was  a  stranger  to  the  shipment,  and  no 
party  to  the  bill  of  lading  in  making  it,  it  is  very  clear  that,  as  to 
him,  the  bill  of  lading  cannot  be  contradicted  by  proving  that  no 
freight  had  been  paid.  As  he  is  one  of  the  shippers,  if  the 
acknowledgment  by  the  master  of  the  payment  of  freight  had 
been  obtained  by  fraud  or  mistake,  we  are  satisfied  that  evidence 
of  such  fraud  or  mistake  might  be  admitted,"  &c.  The  same 
Court,  in  the  more  recent  case  of  Low  v.  De  Wolf,  8  Pick.  R. 
101,  107,  held  the  following  language:  "These  bills  of  lading, 
ihoMgh  jji-imd  facie  evidence  of  absolute  property  in  him  to  whom 
they  are  endorsed  Ixma  fi(h',  and  for  a  valuable  consideration,  are 
nevertheless  capable  of  being  explained ;  as  in  the  case  of  Ilibbert 
V.  Carter,  1  T.  R.  745,  where  it  was  held,  that  though  the  en- 
dorsement and  delivery  of  a  bill  of  lading  to  a  creditor  prma/acie 
conveys  the  whole  property  in  the  goods  from  the  time  of  its 
delivery,  yet,  if  the  intentioti  of  the  parties  appears  to  have  been 
only  to  bind  the  net  proceeds  in  case  of  the  arrival  of  the  goods, 
the  property  of  the  goods  is,  for  the  purpose  of  insurance,  con- 
sidered to  remain  in  the  endorser."  The  Supreme  Court  of  Penn- 
sylvania, in  the  case  of  Warden  v.  Greer,  6  Watts'  R.  424,  held, 
that  in  an  action  against  a  common  carrier  by  a  consignee  for  not 


OF    THE    CONVEYANCE    OF    GOODS,     ETC.      455 

480.  When  ca  party  who  claims  the  right  to  goods 
on  board  a  vessel,  for  which  bills  of  lading  have 
been  signed,  demands  the  bills  of  lading,  it  is  a  suf- 
ficient demand  of  the  goods,  which  they  represent. 
The  bills  of  lading  are  the  evidences  of  title  to  the 
property ;  and  a  demand  of  those  evidences  is  a  de- 
mand of  the  goods  represented  by  them.  And  such 
demand  binds  the  charterer  as  well  as  the  owner  of 
the  vessel.  The  charterer  cannot  withhold  goods 
for  which  the  master  has  signed  bills  of  lading  to 
third  parties,  against  hona  fide  assignees  of  such  bills 
for  value,  on  the  ground  that  the  property  was  his 
own,  and  the  bills  should  have  been  signed  by  him. 
By  issuing  the  bills  of  lading,  in  the  usual  course  of 
his  employment,  to  a  party  and  his  assignees,  the 

delivering  goods  in  good  order,  the  defendant  will  not  be  permitted 
to  give  evidence  to  contradict  the  bill  of  lading  signed  by  him, 
unless  it  be  to  prove  tliat  a  fraud  or  imposition  was  practised  upon 
him.  "  Some  difficulty  arose,"  says  the  Court,  "  as  to  whether  the 
owners  could  contradict  the  bill  of  lading.  This  is  not  generally 
permitted;  but  cases  may  occur  in  which  it  may  be  proved  there 
was  imposition  on  the  captain,  or  a  mistake  of  both  consignor  and 
captain.  The  captain  does  not  open  or  otherwise  examine  the 
casks.  .Suppose  he  receives  a  barrel  of  corn,  instead  of  a  barrel  of 
coifee;  or  a  barrel  of  cider,  instead  of  Madeira  wine;  or  a  package 
of  cotton  linen,  instead  of  flaxen  linen  :  it  would  seem  his  bill  of 
lading  would  not  and  ought  not  to  exclude  him  from  proving  this, 
whether  it  arcse  from  mistake  or  fraud  in  the  consignor.  IJut  it 
would  unsettle  everything  to  permit  a  captain  to  receipt  a  bill  for 
one  hundred  barrels  <if  molasses,  and,  at  fifteen  hundred  miles' 
distance,  prove  by  his  liands  that  the  barrels  were  not  half-full,  or 
to  receipt  for  them  as  in  good  order,  and  prove  that  they  were  in 
80  bad  order  as  to  leak  a  gallon  or  a  (|uart  an  hour."  The  bill  of 
lading  is  a  mere  receipt  for  the  goods,  and  contains  no  stipulation 
or  liability  to  wliicli  the  master  would  not  be  subject  by  the  gene- 
ral maritime  law.     The  Ninetta,  nhi  nujtra. 


456  THE    LAW    OF    SHIPPING. 

master  enables  sucli  party  to  dispose  of  the  property 
to  others  in  good  laith  lor  vahie,  by  a  mere  endorse- 
ment of  the  bills.  And  this  enables  the  holder  of 
the  bills  to  demand  the  goods  from  the  master  of 
the  ship,  whoever  he  may  be,  and  he  can  hold  them 
by  virtue  of  the  bills  of  lading  against  any  direction 
or  control  of  the  charterer.^ 

481.  When  the  master  signs  a  bill  of  lading,  which 
contains  a  stipulation,  giving  him  "  the  privilege  of 
reshipping  on  any  good  boat,"  neither  he  nor  his 
owners  are  discharged  from  the  obligation  of  carriage 
and  delivery  to  the  port  of  destination,  by  merely 
reshipping  the  goods  on  board  "  any  good  boat."  The 
master  having  undertaken,  for  a  stipulated  reward, 
to  deliver  the  goods  in  good  order  at  the  port  of  des- 
tination, is  bound  to  do  so,  unless  he  shows  that  the 
goods  were  lost,  or  so  injured  as  to  prevent  their  de- 
livery, by  the  unavoidable  accidents  of  navigation. 
The  onus  lies  on  him,  whether  he  reships  the  goods 
or  not.'     When  the  privilege  of  reshipping  is  re- 

'  Zachrisson  v.  Ahman,  2  Sandf.  S.  C.  R.  68.  See  also,  The 
Brig  Lowndes,  5  Louis.  R.  426. 

«  Dunseth  v.  Wade,  2  Scammon's  R.  289.  See  Wilcox  v.  Par- 
melee,  3  Sandf.  S.  C.  R.  610.  In  Walker  v.  Cassaway,  4  Louis. 
R.  19,  it  was  held,  that  where  the  master  of  a  steamer,  by  false 
representations,  induces  an  agent  of  a  third  person  to  ship  mer- 
chandise on  his  boat  at  a  certain  freight,  and  the  bill  of  lading 
states  that  the  merchandise  is  taken  "  with  the  privilege  of  reship- 
ping," and  the  freight  is  reshipped  on  another  boat  and  brought 
to  the  port  of  destination,  the  owner  of  the  merchandise  cannot 
require  its  delivery  before  paying  the  freight  due  to  the  boat  on 
which  it  was  so  reshipped,  the  contract  by  the  master  of  the  second 
boat  having  been  made  in  good  faith,  at  a  reasonable  rate,  with  a 
party  who  held  a  possession  apparently  fair,  under  a  bill  of  lading 


OF    THE    CONVEYANCE    OF    GOODS,     ETC.      457 


served,  it  is  incumbent  on  the  master  of  the  boat,  in 
order  to  discharge  himself  from  his  obligations,  in 
case  of  loss,  to  show  by  legal  evidence,  not  only  that 
the  goods  were  reshipped  on  a  good  boat,  but  that 
the  goods  were  lost  by  the  unavoidable  accidents  of 
the  river.^ 

authorizing  a  reshipnient.  The  bad  faith  of  the  master  of  the  first 
boat  should  not  deprive  the  owners  of  the  second  boat  of  the  remu- 
neration due  for  their  labor.  It  was  also  held,  that  when  a  bill  of 
lading  stipulates  for  the  privilege  of  reshipment,  a  second  carrier 
to  whom  the  merchandise  is  transferred  will  have  a  lien  on  the 
property  for  his  freight.  He  is  not  the  mere  agent  of  the  first 
carrier. 

'  Dunscth  V.  Wade,  siqira.  See  also,  6  &  7  Ohio  11.,  and 
Whitesidcs  v.  Russell,  8  W.  &  S.  44.  In  this  latter  case,  Judge 
Rogers,  in  delivering  the  opinion  of  the  Court,  said,  "  The  privi- 
lege of  reshipment  reserved  in  the  bill  of  lading,  is  intended  for 
the  benefit  of  the  carrier,  but  was  not  designed  to  limit  his  respon- 
sibility; ho  continues  liable,  notwithstanding  this  clause,  by  the 
express  terms  of  the  contract,  to  deliver  the  goods  safe  and  in  good 
order  at  Pittsburg ;  but  he  is  at  liberty  to  do  this  either  in  his 
own  boat  or  in  any  other  good  boat  which  the  carrier  may  select. 
This  point  has  been  ruled  the  same  way  in  two  of  our  sister  States, 
Ohio  and  Illinois  (6  &  7  Ohio  11.  143;  M'Gregor  v.  Kilgore,  2 
Scamraond,  288).  A  stipulatiim  in  a  bill  of  lading  tliat  the  ship- 
per, in  ca.se  of  low  water,  may  reship  in  other  craft,  does  not  vary 
his  obligation  to  deliver  .safely.  Such  stipulation  is  for  his  benefit, 
and  continues  his  liability  if  resorted  to.  It  was  but  a  privilege, 
say  the  (.'ourt,  to  the  carrier,  on  the  executing  of  his  contract  to 
convey  and  deliver,  in.serted  for  his  own  benefit,  to  secure  him  the 
advantage  of  a.s  great  a  portion  of  the  freight  as  he  could  earn, 
and  to  throw  upon  the  owner  any  increase  of  expense.  The  rela- 
tion of  carrier  continues  from  the  shipment  of  tlie  goods  until  the 
arrival  at  the  destined  point  of  delivery."  Whitesidcs  v.  Russell, 
was  an  action  to  recover  the  value  of  twelve  tierces  of  rice,  shipped 
at  New  Orlean.s  on  board  the  steamer  Norfolk,  then  lying  at  New 
Orlcan.s,  bound  for  Pittsburg.  The  defendants  agreed  fo  deliver 
the  good.s  in  good  order  at  the  port  of  Pittsburg  (the  dangers  of  the 
navigation  excepted),  reserving  the  privilege  of  resliijiping  tlie  same 


458  THE    LAW    OF    SUIPPING. 

482.  It  is  proper  to  observe  in  this  place,  that 
steamboats,  like  other  vessels,  may  be  employed  as 
common  carriers,  and  when  so  employed,  their  own- 
ers are  liable  for  all  losses  and  damages  to  goods  and 
other  property  intrusted  to  them  as  common  car- 
riers, to  the  same  extent  and  in  the  same  manner  as 
any  other  common  carriers  by  sea.  But  whether 
the}-  are  so,  depends  entirely  upon  the  nature  and 
extent  of  the  employment  of  the  steamboat,  either 
express  or  implied,  which  is  authorized  by  the  own- 
ers. A  steamboat  may  be  employed  solely  in  the 
transportation  of  passengers ;  and  then  the  liability 
is  incurred  only  to  the  extent  of  the  common  rights, 
duties,  and  obligations  of  carrier  vessels  of  passen- 
gers by  sea,  and  carrier  vehicles  of  passengers  on 
land ;  or  they  may  be  employed  solely  in  the  trans- 
portation of  goods  and  merchandise,  and  then,  like 
other  carriers  of  the  like  character  at  sea  and  on 
land,  they  are  bound  to  the  common  duties,  obliga- 
tions, and  liabilities  of  common  carriers.  Or  the 
emplo^mient  may  be  limited  to  the  mere  carriage  of 
particular  kinds  of  property  and  goods ;  and  when 
this  is  so,  and  the  fact  is  known  and  avowed,  the 
owners  will  not  be  liable  as  common  carriers  for  any 

in  good  boats.  The  rice  was  reshipped  at  Cincinnati  on  board  the 
steamer  Levi  Welsh,  which  it  is  agreed  was  a  good  boat.  At  IJlcn- 
ncrhassett's  Island  the  Levi  Welsh  struck  upon  a  stone  in  the  Ohio 
river,  and  knocked  a  hole  in  her  bottom,  by  which  the  rice  was 
damaged  and  lost.  The  carrier  claimed  that  this  was  a  loss  from 
a  peril  of  the  navigation,  and  that  he  was  therefore  exempt  from 
liability.  The  Court  said,  that  it  was  incumbent  on  him  to  prove 
the  loss  and  manner  of  it,  and  also  that  the  usual  care  and  dili- 
gence had  been  used  to  avoid  it.  See  to  the  same  point,  1  Con. 
Rep.  189  ;  11  Wend.  25;  5  Ilawle.  189  3  G  W.  &  S.  408. 


OF    THE    CONVEYANCE    OF    GOODS,    ETC.      459 


otlier  goods  or  property  intrusted  to  their  agents 
without  their  consent.  Our  steamboats  are  ordina- 
rily' emploj-ed  in  the  carriage  not  merely  of  passen- 
gers, but  of  goods  and  merchandise,  including  specie, 
on  freight ;  and  in  such  cases  the  owners  will  incur 
the  liabilities  of  common  carriers  as  to  all  such  mat- 
ters within  the  scope  of  their  employment  and  busi- 
ness. But  whether  steamboat  owners  are  common 
carriers  or  not,  depends  on  the  usage  of  different 
routes  and  different  ports,  and  that  usage  must  be 
established  as  a  matter  of  fact  by  suitable  proofs.  In 
the  absence  of  proof,  the  Courts  will  not  undertake  to 
say  judicially,  that  they  are,  perse,  common  carriers.^ 

'  The  Nantucket  Steamboat  Co.,  2  Story's  C.  C.  R.  16,  33 ; 
Story,  J.  See  also  Gilniore  v.  Carman,  1  Sraedes  &  Marshall, 
279.  In  this  latter  case.  Chief  Justice  Sharkey  said,  ''There 
could  be  no  doubt  but  what  the  owners  of  steamboats  engaged  in 
the  carrying  trade  on  the  navigable  rivers,  arc  to  be  regarded  as 
common  carriers.  It  is  their  business  or  calling,"  he  observed, 
"  to  transport  merchandise  and  other  articles  from  one  port  to 
another  for  a  price  or  compensation.  Being  common  carriers, 
they  are  liable  for  all  losses  except  those  which  have  occurred  by 
inevitable  accident  resulting  from  the  act  of  God,  or  those  which 
may  have  resulted  from  public  enemies  of  the  country.  The  own- 
ers are  the  insurers  against  all  losses  occasioned  by  accidents  not 
within  the  exceptions  of  law,  or  which  are  not  excepted  by  special 
contract.  Lo.ss  by  fire,  is  not  a  lo.ss  by  an  inevitable  accident, 
wliich  will  protect  the  owners  under  the  law.  Nnr  arc  they  exone- 
rated by  the  exception  in  tlic  bill  of  lading,  'the  dangers  of 
the  river  only  excepted.'  This  exception  is  not  sufiicicntly  broad 
to  cover  any  casualty  which  is  not  peculiar  to  the  navigation  of 
the  river.  And  the  danger  of  fire  does  not  fall  within  the  excep- 
tion. It  is  not  a  danger  which  proceeds  from  or  is  jnuuliar  to  tlio 
river.  It  arises  from  the  means  used  in  propelling  the  boat,  and 
not  from  any  obstacle  or  impediment  in  the  river.  The  boat  itself 
i.s  the  depository  of  the  agent  which  produces  its  own  destruction. 


4G0  THE    LAW    OF    SHIPPING. 

483.  The  usual  words  in  .1  bill  of  lading  ("7b  he 
delivered,  d'c,  unto  order,  or  assigns'),  binding 
the  master  to  deliver  tlie  goods  to  the  person  to  whom 
the  shipper  or  consignor  shall  order  the  delivery,  or 
to  the  assignee  of  such  person,  enables,  as  we  have 
already  seen,  the  person  so  named,  or  his  assignee, 
to  demand  the  goods.  But  where  A.,  being  indebted 
to  B.,  ships  goods  on  his  own  account  and  risk,  and 
sends  therewith  bills  of  lading,  by  which  the  goods 
are  made  deliverable  to  liis  own  order,  and  which 
are  endorsed  by  him  in  blank,  and  enclosed  to  C, 
the  successor  of  B.,  with  authority  to  fill  up  the 
blank  and  make  the  goods  deliverable  to  himself,  or 
to  such  person  as  he  might  name,  with  power  to  re- 
ceive the  proceeds  in  satisfaction  of  A.'s  debt  to  B., 
and  upon  the  arrival  of  the  ship  at  the  designated 
port,  with  the  goods  on  board,  C.  fills  up  the  endorse- 
ment upon  the  bills  of  lading,  making  the  goods  de- 
liverable to  D.,  who  is  to  pay  freight  and  duties,  dis- 
pose of  the  goods,  and  account  for  the  proceeds  in 
payment  of  A.'s  debt,  and  D.  thereupon  receives  the 
goods,  enters  them  at  the  custom-house,  gives  bond 
for  the  duties,  and  becomes  responsible  for  the 
freight — the  property  does  not  thereby  vest  in  B. 
And  if  the  goods,  while  thus  in  the  possession  of  D., 
are  attached  as  the  property  of  B.,  D.  may  maintain 
replevin  against  the  attaching  officer.^ 

484.  It  is  a  question  of  considerable  difficulty,  as 

If  the  owner  chooses  to  employ  this  agent,  he  cannot  with  pro- 
priety say  that  it  is  productive  of  a  clanger  incident  to  the  naviga- 
tion of  the  river,"  &c.  Sec  further  upon  this  point,  Smith's 
Leading  Cases  (Am.  Ed.). 

*  Chandler  v.  Spraguc,  5  Met.  306. 


OF    THE    CONVETAN-CE    OF    GOODS,    ETC.      461 


to  who  is  entitled  to  bring  the  action  against  the 
owner  and  master  ujoon  the  contract,  evidenced  by  a 
bill  of  lading,  and  for  losses  or  injuries  occasioned  by 
their  misconduct  or  negligence.  According  as  the 
right  of  property  or  the  right  of  possession  is  vested 
in  the  one  or  the  other,  it  may  be  brought  in  the 
name  of  the  consignor  or  consignee.  It  has  been 
said  by  high  authority,  that  no  rule  of  general  ap- 
plication can  be  laid  down  for  the  solution  of  this 
difficulty,  but  that  in  all  cases  it  is  important  to  con- 
sider in  whom  the  right  of  property',  and  sometimes 
in  whom  the  right  of  possession,  is  vested,  at  the  time 
of  the  breach  of  contract  or  neglect  of  duty  which  is 
complained  of.' 

485.  Where  the  bill  of  lading  expresses  the  goods 
to  be  shipped  for  the  account  and  risk  of  the  con- 
signee, he  paying  the  freight,  in  the  absence  of  any 
proof  showing  the  relation  of  the  consignor  and  con- 
signee, the  former  will  be  regarded  as  a  mere  agent  of 
the  latter.     And  any  property  he  might  have  had  in 

'  Abbott  on  Shipp.,  p.  403.  In  tlie  case  of  The  Mary  Ann  Guest, 
Blatcbf.  R.  358,  goods  were  purchased  on  credit  and  shipped  by 
the  vendor  on  board  of  a  vessel  whose  master  gave  a  bill  of  lading 
for  their  delivery  to  the  consignee  or  his  order.  Before  the  vessel 
reached  the  port,  the  bill  was  endorsed  to  A.,  who  advanced  cash 
upon  it.  After  she  arrived,  and  before  A.  demanded  the  goods, 
they  were  replevied  by  the  vendor,  on  an  allegation  that  the  vendee 
had  agreed  to  pay  for  the  goods  on  delivery,  but  had  become  in- 
solvent, and  had  not  paid  for  them.  /A/r/,  (hat  A.  was  a  bond  fide 
purchaser,  that  the  seizure  of  the  goods  by  virtue  of  the  writ  of 
replevin  constituted  no  bar  to  his  right  tf)  the  delivery  of  the  goods, 
and  that,  on  a  libel  in  rem,  the  vcHscl  was  responsible  to  him, 
irrespective  of  the  suit  between  the  vendor  and  vendee. 


402  THE    LAW    OF     SHIPPING. 

the  goods  is  divested  by  the  delivery  to  the  carrier. 
And,  thereibre,  no  right  of  action  remains  to  him.' 
If,  however,  the  goods  are  at  the  risk  of  the  consignor 
during  their  transit,  the  property  remains  in  him  until 
delivery,  and  this  notwithstanding  the  freight  is  to 
be  paid  by  the  consignee.^ 

48G.  The  general  principle  is,  that  the  person  who 
employs  the  carrier  must  bring  the  action,  and  the 
circumstance  of  the  right  of  property  being  in  one 
person  may  be  evidence  of  employment  by  that  per- 
son.^ In  the  case  of  vendor  and  vendee,  if  the  goods 
are,  whilst  the  carrier  has  the  care  of  them,  to  be  at 
the  risk  of  the  vendor,  he  must  bring  the  action 
against  the  carrier.  In  ordinary  cases,  the  vendor 
employs  the  carrier  as  the  agent  of  the  vendee." 

'  Potter  V.  Lansing,  1  John.  R.  215;  Dawes  v.  Peck,  8  D.  &E. 
330;  Evans  v.  Martlctt,  1  Lord  Raym.  271 ;  Shec  v.  Prescott,  1 
Atk.  248,  6  East,  23. 

-  Ludlow  V.  Bowne,  1  John.  R.  1. 

3  Freeman  v.  Birch,  1  Nev.  &  Mar.  420. 

*  Ibid. ;  Davis  v.  James,  5  Burr.  2G80 ;  Moon  v.  Wilson,  1  T. 
R.  G59;  Chandler  v.  Sprague,  5  Metcalf,  306;  Griffith  v.  Ingle- 
dew,  6  Serg.  &  R.  429.  In  this  latter  case,  the  consignor  owned 
the  goods,  and  he  had  paid  the  freight  for  the  same,  yet  the  Court 
held,  that  the  consignee  might  maintain  an  action  for  damage  to 
the  goods.  The  Court  put  their  decision  upon  the  ground  that  the 
legal  property,  by  virtue  of  the  bill  of  lading,  was  vested  in  the 
consignee,  although  he  held  in  trust  for  the  consignor.  Gibson,  J., 
dis.sented  from  the  opinion  of  the  Court.  After  a  careful  exami- 
nation and  analysis  of  the  authorities,  he  thus  stated  his  conclu- 
sion :  "  The  bill  of  lading  constituted  an  express  promise,  and  the 
consideration  having  moved  from  the  consignor,  who  alone  was  in- 
terested in  the  performance  of  the  contract,  I  am  of  opinion, 
whether  we  follow  Dutton  v.  Poole,  1  Vent.  318,  or  the  decisions 


OF    THE    CONVEYANCE    OF    GOODS,     ETC.      463 


487.  Where  the  consignee  procures  the  consign- 
ment by  fraud,  the  property  of  the  goods  never 
passes  out  of  the  consignor,  and  he,  therefore,  is  the 
proper  party  to  bring  the  action.^  Generally  speak- 
ing, when  goods  of  a  fair  merchantable  quality  are 
forwarded  in  pursuance  of  a  written  order,  which 
binds  the  person  giving  the  order  to  receive  the 
goods,  the  property  passes  to  that  person  by  the  de- 
livery of  the  carrier,  and  he  is  the  proper  person  to 
sue  the  carrier  if  the  goods  are  lost,  but  if  the  goods 
are  sent  merely  for  approval,  no  property  passes 
until  the  goods  are  received  and  approved.  The 
goods,  therefore,  during  their  transit,  remain  the  pro- 
perty of  the  consignor,  and  he  alone  is  entitled  to 


sue.^ 


directly  on  the  point,  or  those  general  principles  which  are  appli- 
cable to  all  express  contracts,  or  even  treat  the  pronii,>«e  as  having 
arisen  by  implication  of  law,  the  consignee  ought  not  to  iiKiintain 
his  action." 

'  Stephenson  v.  Hart,  4  Bing.  R.  470 ;  Wilson  v.  Churchman, 
4  Louis.  R.  452;  Duff  v.  Budd,  3  Brod.  &  Bing.  177. 

^  Swain  v.  Shepherd,  1  Mood.  &  Rob.  223 ;  Fragano  v.  Long,  4 
B.  &  C.  219.  In  this  case,  Fragano,  the  plaintiff,  scut  an  order  to 
Mason  &  Sons,  at  Birmingham  (he  residing  at  Naples),  for  certain 
good.s,  "to  be  despatched  on  insurance  being  effected.  Terms  to 
be  three  months'  credit  from  the  time  of  arrival."  But  for  that 
order  the  goods  never  would  have  left  Mason's  warehouse,  and 
when  sent  were  marked  with  Fragano's  initials.  The  risk  of  the 
good.s  was  thrown  upon  Fragano  the  moment  (he  transit  began. 
At  Liverpool,  Stokes  it  Co.,  Mason's  shipping  agents,  sliipped  the 
goods  and  took  a  receipt.  On  (he  passage,  the  goods,  through  the 
negligence  of  the  n)astcr,  were  damaged.  It  was  held  (hat  the  ac- 
tion was  rightly  brought  in  the  name  of  Fragano,  in  wlmni  vested 
the  property  of  the  goods  the  moment  (hey  left  Mason's  warehouse. 
See  also  Stanton  v.  Eager,  IG  Pick.  407. 


464  THE    LAW    OF    SHIPPING. 

488.  If  the  carrier  expressly  contracts  to  be  liable 
to  the  consignor  in  consideration  of  the  carriage,  in 
that  case  the  action  may  be  brought  in  the  name  of 
the  consignor,  not  on  the  ground  of  any  right  of 
property  that  he  may  retain  in  the  goods,  but  on  the 
ground  of  the  agreement.' 

480.  The  shipper  has  the  sole  authority,  in  the 
first  instance,  to  direct  the  consignment,  and  if  he 
fills  up  the  bill  of  lading  with  the  name  of  a  parti- 
cular consignee  or  bearer,  with  a  view  to  some 
negotiation  of  his  own,  which,  however,  he  does  not 
accomplish,  and  does  not  deliver  the  bill  of  lading, 
the  insertion  of  such  name  gives  the  consignee  no 
authority  over  or  interest  in  it.^  If  the  name  is  left 
blank,  the  property  passes  by  a  delivery  of  the  bills 
of  lading  by  the  shipper.^  And  this  is  sufficient  to 
enable  the  holder  to  receive  and  hold  the  property 
against  any  person  except  a  prior  endorsee  without 
notice. •« 

490.  Where  the  shipper  of  goods  draws  a  bill  of 
exchange  upon  the  credit  of  the  consignment,  and, 
as  collateral  security,  delivers  to  the  holder  the  bill  of 
lading,  by  which  the  goods  are  to  be  delivered  to  the 
consignee  or  bearer,  and  the  consignee  refuses  to  ac- 

'  Moore  v.  Wilson,  1  T.  R.  659,  vide  Stanton  v.  Eager,  16  Pick. 
46,  as  to  the  effect  of  an  order,  and  goods  shipped  in  pursuance  of  it. 

=  Allen  V.  Williams,  12  Pick.  297 ;  Hibbcrt  v.  Carter,  2  D.  & 
E.  71;  Lickbarrow  v.  Mason,  5  T.  E.  367;  Ilaille  v.  Smith,  1  B. 
&  P.  568 ;  Buffington  v.  Curtis,  15  Mass.  528. 

3  Low  V.  De  Wolf,  8  Pick.  R.  101. 

*  Nathan  v.  Giles,  5  Taunt.  558 ;  Allen  v.  Williams,  12  Pick. 
297. 


OF    THE    CONVEYANCE    OF    GOODS,    ETC.      465 

cept  the  draft,  but  afterwards  obtains  the  goods  from 
the  master  of  the  vessel  and  sells  them,  it  is  held, 
that  upon  the  refusal  to  accept  the  draft,  the  holder 
becomes  entitled  to  the  possession  of  the  goods,  and 
may  maintain  an  action  against  the  consignee  for 
the  proceeds  of  the  sale/ 

491.  In  the  case  of  Allen  v.  Williams,  where  this 
point  was  settled,  the  question  was  presented  to  the 
Court,  whether  the  consignee  did  not  make  himself 
liable  to  pay  the  draft,  from  having  received  the 
consignment,  that  being  the  fund  from  which  it  was 
to  have  been  met.  It  was  contended  that  when  a 
consignee  is  advised  of  a  provisional  consignment, 
and,  at  the  same  time,  of  a  bill  of  exchange,  drawn 
expressly  upon  the  credit  of  such  consignment,  and 
the  bill  of  ladini;;  and  the  draft  are  tendered  together, 
if  the  consignee  will  accept  the  consignment  at  all, 
he  does  ipso  facto  accept  the  draft,  and  may  be 
charged  in  an  action  as  acceptor.  On  the  other 
hand,  it  was  said,  that  wdien  the  drawee  not  only 
declines  accepting  the  draft,  but  in  terms  refuses  to 
do  so,  and  gets  possession  of  the  property  shipped, 
not  by  means  of  the  bills  of  lading,  held  hy  the  holder 
of  the  draft,  but  by  some  other  means,  it  would  bo 
pressing  the  doctrine  of  constructive  acceptance  too 
far,  to  charge  such  consignee  as  acceptor.  The  Court 
declined  giving  an  opinion  upon  the  point,  it  not 
being  necessary  to  a  decision  of  the  cause,  l)ut  ob- 
served that  such  a  (jucstion  might  well  depend  upon 
a  careful  discrimination  of  the  circumstances  of  each 
particular  case. 

>  Nalhau  v.  Giles,  5  Taunt.  558;  Allou  v.  Williaiiiy,  12  Pick. 

297. 

'80 


4G6  THE    LAW    OF    snirpiNG. 

402,  The  general  principle  deduciblc  from  the 
cases,  although  they  are  not  in  all  respects  recon- 
cilable, is  that  actions  against  ship-owners,  as  carriers, 
in  their  implied  contract,  and  actions  for  the  loss  or 
injury  of  the  goods  intrusted  to  them,  must  be  brought 
by  a  person  who  has  some  property  in  the  goods. 
The  consignee  will  be  deemed  to  have  such  a  pro- 
perty, unless  the  contrary  appear.  To  enable  a 
person  to  maintain  an  action  of  trover  for  goods,  or 
for  not  delivering  goods  to  him,  he  must  also  have  a 
right  of  possession.  In  the  case  of  an  express  con- 
tract, evidenced  by  a  bill  of  lading,  the  action  may 
be  brought  by  the  shipper  with  whom  the  master 
contracted,  or  by  the  owner  of  the  goods,  whose 
agent  the  shipper  was,  or,  in  some  cases,  by  the 
person  to  whom,  by  the  terms  of  the  bill  of  lading, 
the  master  undertook  to  deliver  them.^ 

'  Abbott  on  Shipp.,  414.  See,  also,  the  recent  case  of  Grove 
V.  Brien,  8  How.  R.  429.  For  cases  where,  by  the  terms  of  deal- 
ing between  the  consignor  and  consignee,  the  property  in  the 
goods  vested  in  the  latter  at  the  time  of  shipment,  and,  therefore, 
determined  the  question  as  to  who  should  bring  an  action  against 
the  ship-owner  for  the  loss  or  injury  of  the  goods,  see  Haille  v. 
Smith,  1  B.  &  P.  5G3;  Cox  v.  Harden,  4  East,  11.  211;  Branett 
V.  Bowlby,  2  B.  &  Ad.  932 ;  Zachrisson  v.  Akman,  2  Sandf.  S. 
C.  11.  08;  Walley  v.  Montgomery,  3  East's  R.  585.  In  this 
latter  case,  the  consignor  advised  the  consignee,  by  letter,  that  he 
had  chartered  a  certain  ship  on  his  account,  and  inclosed  him  an 
invoice  of  the  goods  laden  on  board,  which  were  therein  expressed 
to  be  for  account  and  risk  of  the  consignee,  and  also  a  bill  of 
lading  in  the  usual  form,  expressing  the  delivery  to  be  made  to 
order,  &c.,  he  paying  freight  for  the  said  goods  according  to 
charter-party;  and  the  letter  of  advice  also  informed  the  con- 
signee that  the  consignor  had  drawn  bills  on  him  at  three  months 
for  the  value  of  the  cargo.     It  was  held  that  the  invoice  and  bill 


OF    THE     CONVEYANCE    OF    GOODS,    ETC.      467 

493.  "Warehousemen  and  forwardiiig-merchants 
are  responsible  only  for  want  of  good  faith,  and 
reasonable  or  ordinary  diligence;  but  one  of  the 
first  duties  of  a  consignee  for  transmission  is  to  obey 
the  instructions  of  the  consignor,  either  express  or 
fairly  implied.  AYlien  they  undertake  to  vary  from 
the  instructions,  proceeding  from  whatever  motive 
it  may,  and  a  loss  is  occasioned  thereby,  they  are 
clearly  liable  to  the  owner  of  the  goods/ 

494.  Hence,  when  the  consignor  and  owner  de- 
livers goods  to  a  forwarding-merchant,  directed  to 
"J.  F.,"  and,  instead  of  forwarding  them  in  the 
manner  directed,  he  inserts,  without  any  authority, 
the  name  of  a  consignee  in  the  bill  of  lading,  which 
was  not  marked  on  the  goods,  and,  in  consequence, 
the  goods  are  seized  and  sold  by  a  sheriff  as  the  pro- 
perty of  the  person  whose  name  is  thus  inserted,  the 
forwarder  is  liable  to  the  real  owner.^ 

of  lading  sent  to  the  consignee,  and  the  delivery  of  the  goods  to 
the  captain,  vested  the  property  in  the  consignee,  subject  only  to 
be  divested  by  the  consignor's  right  to  stop  the  goods  in  transitu, 
in  case  of  the  insolvency  of  the  other.  And  the  consignor's  agent 
liaving  obtained  possession  of  the  cargo  under  another  bill  of 
lading,  and  having  refused  to  deliver  it  up  unless  the  consignee 
would  make  immediate  payment,  which  he  declined  doing,  but 
offered  his  acceptance  at  three  months  in  the  manner  before  stipu- 
lated, it  was  held  that  the  consignee  might  maiiitaiu  trover  against 
such  agent,  without  having  tendered  payment  of  the  freight  cither 
to  him  or  the  captain,  the  defendant  having  possessed  himself  of 
the  goods  wrongfully.  Scf3  also  Ogle  v.  Atkinson,  T)  Taunt.  759, 
Mitdiel  v.  Kdo,  :}  JVrry  k,  Dav.  01.'{,  as  to  conditional  cnnsign- 
monts.  Also,  IJarrow  v.  Coles,  3  Camp.  92;  "Wilmsliurst  V. 
IJowkcr,  5  liing.  N.  C  5. 

'  Forsytbc  v.  Walker,  9  Barr,  148,  Rogers,  J.  '  Ibid. 


4GS  THE    LAW    OF     SIIirPING. 

495.  A  bill  of  lading,  like  other  contracts,  is  to  be 
construed  according  to  the  intention  of  the  parties. 
Usage  of  trade  is  always  presumed  to  be  within  the 
knowledge  of  the  parties,  and  the  bill  of  lading  is 
supposed  to  be  made  Avitli  reference  to  it.  Hence, 
where  the  bill  of  lading  expresses  that  goods  are  to 
be  carried  from  one  port  to  another,  a  direct  voyage 
is  primd  facie  intended ;  but  this  presumption  may 
be  controlled  by  a  usage  to  stop  at  intermediate 
ports,  or  by  personal  knowledge,  on  the  part  of  the 
shipper,  that  such  a  course  is  to  be  pursued.^ 

496.  If,  after  the  signing  of  a  bill  of  lading,  war 
ensues  between  the  country  to  which  the  ship 
belongs  and  the  country  to  Avhich,  with  the  cargo, 
she  is  destined,  the  contract  is  dissolved.  The  bill 
of  lading  is  of  no  legal  effect  after  the  declaration  of 
war,  nor  can  any  action  be  maintained  upon  it.  In 
such  a  case,  it  is  always  a  sufficient  answer  that  it 
has  become  impossible  to  perform  the  contract  with- 
out violating  the  laws  of  the  country.^ 

497.  The  voyage  performed,  it  remains  for  the 
master  to  make  a  delivery  of  the  cargo.  "  In  con- 
sidering to  whom  he  will  be  safe  in  making  and  in 
refusing  delivery,  it  may  be  useful,"  observes  Mr. 
Abbott,  "  to  remind  the  master  that  he  can  rarely 
incur  any  responsil)ility  by  adhering  strictly  to  his 
engagement  with  the  shipper.  In  case  of  conflicting 
claims,  it  may  be  prudent  to  require  indemnity ;  but 

»  Lowry  V.  Russel,  8  Pick.  300. 

^  Brown  v.  Delano,  12  Mass.  R.  370. 


OF    THE    CONVEYANCE    OF    GOODS,    ETC.      4G9 

if  he  make  delivery  to  the  person  who  first  claims 
the  goods  under  a  bill  of  lading  regularly  assigned 
to  him,  the  consignor  will  seldom  have  much  color 
to  complain  that  orders  drawn  up  by  himself  have 
been  too  strictly  observed."^ 

498.  If  several  tenants  in  common  make  a  ship- 
ment of  goods,  and  consign  them  to  the  master,  the 
consignment  is  to  be  considered  as  several,  not- 
withstanding the  instructions  and  bill  of  lading  are 
to  him  as  in  a  joint  concern.  He  has  no  authority, 
therefore,  on  the  return  voyage,  to  consign  the 
whole  exclusively  to  two  of  the  owners,  excluding 
the  others.  Being  himself  the  general  consignee, 
he  ought,  upon  the  homeward  voyage,  to  make  the 
consignment  general  to  himself  for  the  use  of  the 
owners,  or  to  them  directly,  according  to  their 
respective  shares.  But  if,  instead  of  doing  this,  he 
makes  the  consignment  to  one  of  the  tenants  in 
common,  the  latter  has  no  lien  on  it  for  any  sepa- 
rate and  distinct  demands  against  the  other  tenants 
in  common,  nor  against  any  firm  of  which  they  may 
be  partners  with  a  third  person,  nor  can  he  set  off 
such  debts,  in  a  suit  Ijrought  against  him  by  the 
other  tenants,  or  Ijy  their  assignee,  in  equity,  to 
account  for  their  share  of  tlie  property.^ 

49'J.  If  go(j(ls  are  put  on  board  a  vessel  without 
the  knowledge   of"    tin;   nuister,   lie   may   put   tlicm 

'  Abb.  on  Shipp.,  p.  414,  415. 

"  Jackson  v.   Kobinsoii,   '.i   Mason's  II.   l']8.     In  general,   the 
doctrine  of  ect-oS'  is  the  same  in  equity  as  at  law. 


470  THE     LAW    OF    SHIPPING. 

ashore,  for  there  is  no  implied  contract  of  affreight- 
ment. If  he  retains  them  on  ))oard,  and  carries 
them  on  to  the  port  of  destination,  he  is  entitled  to 
freight  for  their  carriage,  and  would  be  answerable, 
I  presume,  as  well  as  the  ship-owner,  whose  agent 
he  is,  for  the  want  of  care  and  diligence,  with  respect 
to  them.  For  the  undertaking  to  carry  them  is  vo- 
luntar}-,  and  the  law  would  therefore  hold  him  to  the 
same  degree  of  accountability  and  responsibility,  as 
if  he  undertook  their  carriage  by  express  contract. 
If,  however,  the  goods  are  not  discovered  until  the 
ship  sails,  the  better  opinion  is  that  the  master  is 
not  to  leave  them  at  an  intermediate  port  without 
necessity,  but  to  carry  them  to  the  port  of  destina- 
tion. 

500.  But  the  ship-owner,  in  such  a  case,  is  not  re- 
sponsible for  any  loss  or  injury  that  may  happen  to 
them  on  the  voyage,  nor  is  he  responsible  when  the 
master  takes  goods  on  board  clandestinely,  beyond 
the  scope  of  his  authority.  When  goods  are  brought 
into  the  ship  without  the  master's  knowledge,  and 
are  not  discovered  until  after  the  ship  sails,  the 
question  arises  as  to  the  nature  and  degree  of  his 
responsibility.  Being  made  a  bailee  without  his 
knowledge  and  against  his  will,  the  law  will  not,  I 
apprehend,  hold  him  accountable  to  all  the  rigid 
conditions  and  responsibilities  attached  to  that  cha- 
racter when  voluntarily  assumed.  He  would  be 
bound  to  ordinary  care  and  diligence,  and  answer- 
able for  gross  negligence  or  wanton  injury.  And 
that  upon  the  most  obvious  principles  of  law  and 


OF    THE    CONVEYANCE    OF    GOODS,     ETC.      471 

justice  should  be  the  measure  and  limit  of  his  re- 
sponsibility.^ 

501.  The  words,  "  contents  unknown,"  annexed 
to  a  bill  of  lading,  imply  that  the  master  only  meant 
to  acknowledge  the  shipment  in  good  order  of  the 
goods,  as  to  their  external  condition,  or  rather  as  to 
the  external  condition  of  the  cases,  &c.,  in  which 
they  are  put  up,  excluding  any  implication  as  to 
their  quantity  or  quality,  or  as  to  their  condition  at 
the  time  they  were  received  on  board,  or  as  to 
whether  properly  packed  or  not  in  the  boxes.^ 

»  Bonncy  v.  The  Huntress,  Davies'  R.  82  ;  "Walter  v.  Brewer, 
11  Mass.  09  ;  Ord.  de  la  Marine,  art.  7  ;  Code  dc  Commerce, 
No.  202. 

'  Clark  V.  Barnwell,  12  How.  U.  S.  R.  272 ;  Abbott  on  Shipp. 
41G.  <'If  there  is  any  dispute,"  says  Mr.  Abbott,  ''about  the 
quantity  or  condition  of  the  goods,  or  if  the  contents  of  casks  or 
bales  arc  unknown,  the  words  of  the  bill  of  lading  should  be 
varied  accordingly." 


472 


CHAPTER   VI. 

OF  THE  EARNING  AND  PAYMENT  OF  FREIGHT. 

502.  Freight  is  the  hire  which  is  earned  by  the 
transportation  of  goods.  This  is  the  original  and 
elementary  signification  of  the  word.  It  is  due 
for  the  service  which  is  rendered  in  transporting 
them  from  a  place  where  they  are  supposed  to  be 
worth  less,  to  a  place  where  they  are  worth  more. 
This  service  has  given  to  the  merchandise  a  new 
value  which  it  had  not  before ;  as  much  so  as  is 
given  by  a  tailor  to  a  piece  of  cloth,  which  he  had 
made  into  a  coat,  or  by  any  other  mechanic,  when 
he  has,  in  the  way  of  his  trade,  changed  the  form  of 
a  thing,  and  converted  it  into  what  is  technically 
called  in  the  civil  law,  a  new  species.  Though  here 
has  been  no  change  in  the  form  of  the  thing,  yet 
there  has  been  a  service  performed  by  which  it  has 
received  a  new  and  additional  value,  as  certain  and 
as  distinguishable  from  its  former  value  as  that 
which  is  given  by  a  mechanic  who  converts  one 
species  into  another.  It  is  a  general  principle  of  law, 
extending  to  a  great  variety  of  cases,  that  a  person 
who  has,  by  his  own  labor,  thus  added  a  new  value 
to  a  specific  article,  has  a  lien  on  the  article  for  the 
value  of  his  service.     It  is  a  right  consonant  to  all 


OF   EARNING    AND   PAYMENT   OF   FREIGHT.     473 

ideas  of  natural  equity,  and  is  highly  favored  by 
the  law/ 

503.  Freight,  in  its  general  signification,  is  applied 
to  all  rewards,  hire,  or  compensation  paid  for  the  nse 
of  ships,  and  the  same  rules  are  applicable  to  pas- 
sage-money as  are  established  on  the  subject  of 
freight.  In  the  legal  sense  of  the  term,  the  compen- 
sation paid  for  the  transportation  of  passengers  is 
freight,  the  same  as  the  compensation  paid  for  the 
transportation  of  goods.^  Ships  engaged  in  carrying 
passengers  on  the  high  seas  for  hire,  stand,  as  we 
have  observed  in  a  previous  chapter,  on  the  same 
footing  of  responsibihty,  according  to  the  maritime 
law,  as  those  engaged  in  carrying  merchandise,  the 
passage-money  being  equivalent  to  the  freiglit.  It 
follows,  therefore,  that  on  a  breach  of  a  passenger 
contract,  and  damage  resulting,  the  ship  as  well  as 
the  owner  is  bound  to  respond.  All  the  reasons  in 
the  maritime  law  for  charging  the  ship  in  case  of  the 
breach  of  a  contract  of  affreightment  of  goods  and 
merchandise,  apply  with  equal  force  in  the  case  of 
the  breach  of  a  passenger  contract,  and  the  one  is  as 
much  the  appropriate  subject  of  Admiralty  jurisdic- 
tion {IS  the  other.^ 


'  Poland  V.  The  Freight  and  Cargo  oC  ihr  i;ii,i;  Sparlaii,  Ware's 
R.  i;54,  l.'iS;  2  Kent's  Com.  490. 

»  Giles  V.  The  Cynthia,  1  Peters'  Adm.  R.  200;  The  Brig  T>a- 
vinia,  Ihid.  120;  M'CuMooIi'h  Com.  Diet. ;  Pothier,  Traite  dc  Chartc- 
partic,  n.  1;  Wafson  v.  l)u}kinclc,  '.',  John.  K.  .'!'{');  (ircggs  v. 
Austin,  .'5  Piek.  20. 

^Thc  Aherfoylc,  Rhitehford'H  Ad.  11.  ."CO;  TIk'  \'.<r]\]r,  IMd. 
500;  The  General  Smith,  4  Wheat.  R.  4:5S  ;  Huh  s  nf  Ad.  I'rac, 
12,  14,  17,  18;  Rcnediet'8  Adm.  10:5.     The  jurisdiction  of  the 


474  THE    LAW    OF    SHIPPING. 

504.  This  doctrine  was  (Icclarecl.  in  the  case  of 

Admiralty  over  contracts  for  the  transportation  of  passengers  has 
boon  a  subjoct  of  more  or  less  doubt.  It  has  been  supposed,  that 
the  Admiralty  could  not  assume  jurisdiction  to  enforce  a  })assongcr 
contract,  as  against  the  passenger,  because  it  was  said  no  lien  at- 
tached to  the  person  of  the  passenger,  and  therefore  no  proceeding 
in  rem  could  be  maintained,  and  that  the  Admiralty  had  no  juris- 
diction at  all,  simply  in  personam,  in  cases  arising  ex  contractu, 
except  in  the  single  instance  of  seamen's  wages.  Opinion  of  Mr. 
Justice  Johnson  in  Eamsay  v.  Allsgro,  12  Wheat.  R.  Gil;  Bains 
V.  The  Schooner  James  and  Catharine,  1  Baldwin's  11.  544  j  The 
Brig  Hercules,  Gilpin's  11.  184,  If  we  decide  the  question  upon 
the  ancient  authorities,  we  shall  find  that  the  Admiralty  has  juris- 
diction of  a  contract  of  this  nature  (a  passenger  contract),  which 
it  may  exercise  in  personam  as  against  the  passenger,  and  both  in 
personam  and  in  rem,  as  against  the  ship  and  her  owner.  And 
the  modern  authorities,  especially  the  more  recent,  conform  to  the 
principles  establi.shcd  by  the  more  ancient. 

In  the  case  of  The  Brig  Ilcrculcs  {id  supra'),  the  decision  upon 
the  precise  point  involved  was  undoubtedly  correct.  The  remnants 
and  surplus  of  money  in  Court  were  appropriated  to  claims  which 
were  precedently  attached  as  liens  to  the  things  from  which  the 
money  was  produced.  That  is,  doubtless,  the  safest  principle  upon 
which  a  Court  of  Admiralty  can  proceed  in  such  cases.  The  de- 
mand for  passage-money  was  a  personal  claim,  and  gave  no  lien 
upon  the  property  saved  from  the  wreck.  But  Judge  llopkinson,  in 
addition  to  the  obvious  ground  of  decision,  proceeded  to  say  that  a 
contract  between  a  passenger  and  the  master  of  a  vessel  for  the  pas- 
sage "is  strictly  a  personal  contract,  not  made  at  sea,  nor  for  any 
cause  cognizable  in  the  Admiralty."  The  weight  of  authority  is 
against  this  position.  The  contract,  it  is  true,  is  made  on  land,  but 
the  performance  of  it  is  on  the  sea,  or  on  navigable  waters.  And  that 
is  exactly  the  position  of  a  contract  for  the  payment  of  freight  for 
the  carriage  of  goods.  The  commencement  and  consummation  of 
the  contract  in  both  cases  arc  exclusively  on  the  land,  but  the  inter- 
mediate and  indispensable  portion  of  the  performance  is  on  waters 
within  the  Admiralty  jurisdiction;  vide  Peters'  Adm.  R.  126,  n. 
Mr.  Benedict  in  his  work  on  Admiralty  Jurisdiction  and  Practice, 


OF   EAEXING   AND   PAYMENT   OF   FREIGHT.      475 

The  Aberfoyle/  and  again  in  the  case  of  the  Pacific.^ 
The  former  was  the  case  of  an  emigrant  ship  from 
Liverpool  to  New  York.  The  breach  of  the  contract 
occurred  in  the  course  of  the  passage,  the  passengers 
having  been  kept  for  many  days  on  short  allowance 
of  bread  and  water,  the  master  having  omitted,  in- 
tentionally or  otherwise,  to  lay  in  a  proper  supply  of 
stores.  It  was  held  that  the  ship  was  chargeable, 
and  upon  established  principles.  The  contract  was 
a  maritime  contract  to  be  performed  on  the  high 
seas,  and  the  passenger,  therefore,  was  entitled  to 
the  remedy  against  her,  the  same  as  the  owner  of 
the  cargo  in  case  of  the  breach  of  a  contract  of  af- 
freightment. In  the  one  case,  the  ship  is  bound  to 
carry  the  goods  safely  to  the  destined  port,  according 
to  contract,  for  the  freight ;  in  the  other,  the  pas- 
senger-and  his  baggage  for  the  passage-money. 

505.  Wliere  the  contract,  whether  for  the  carriage 
of  goods  or  passengers,  is  an  entire  one,  and  in  its 
essence  a  proper  subject  of  Admiralty  jurisdiction, 
that  jurisdiction  is  not  ousted  by  any  accompanying 
stipulations,  which  are  incidental  and  subsidiary  to 
the  main  purpose.^  As  the  contract  is  an  entirety, 
the  failure  to  comply  with  any  part  of  it  goes  to  the 
whole.  l)()th  i)avtios  liave  a  right  to  demand  a  strict 
comphance  with   every  [):irl,  and,  in  case  of  refusal, 


p.  103,  says  that  the  rights  of  passengers,  in  various  forms,  havo 
been  often  the  subject  of  suits  in  Admiralty  in  the  Soulliern  Dis- 
trict of  New  York,  and  that  the  jurisdiction  is  there  fully  esta- 
blished, both  in  the  District  and  Circuit  Courts.  Vide  The 
Paeilic,  IJlatch.  11.  .001). 

'  lilatchford's  Hep.  300.  «  Ibid.  500.  =■  Ibid. 


476  THE    LAW    OF     SITirPING. 

to  consiilcr  the  contract  as  broken,  and  resort  to  the 
proper  tribunal  lor  redress.  Neither  is  bound  to 
accept  a  part  performance/ 


»  The  Tacific,  Blatcliford's  R.  579.     This  was  a  libel  in  rem, 
filed  in  the  District  Court  of  New  York,  against  the  ship  Pacific, 
then  l}ing  in  the  port  of  New  York,  for  breach  of  a  passenger  con- 
tract.    The  libel  set  forth  that  the  vesselwas  bound  on  a  voyage 
from  New  York  around  Cape  Horn  to  San  Francisco  in  California; 
that  her  owners  agreed  with  the  libellant  at  New  York  to  take 
him  as  a  cabin-passenger,  together  with  his  luggage,  the  fare  to  be 
$300 ;  that  in  order  that  this  class  of  passengers  might  have  all 
the  accommodations  desirable  for  so  long  and  tedious  a  voyage, 
and  suSicient  space  for  exercise  and  air,  not  more  than  fifty  cabin- 
passengers  were  to  be  received  on  board ;  that  the  passage-money 
was,  by  reason  thereof,  raised  to  $300,  instead  of  being  $250,  the 
usual  charge;  that  state-rooms  between  decks  were  to  be  fitted  up, 
making  separate  apartments  for  two  passengers  each,  the  rooms  to 
be  arranged  on  each  side  of  the  vessel,  leaving  a  free  passage-way 
between,  disencumbered  with  freight,  for  ventilation  and  exercise; 
that  the  vessel  was  to  sail  on  or  about  the  5th  of  January,  1849; 
that  the  libellant's   passage-money  was   paid  on  the  2d  of  that 
month ;  that  the  libellant,  who  was  a  resident  of  Massachusetts, 
prepared  himself  for  the  voyage  at  considerable  expense,  and  came 
to  the  city  of  New  York  at  the  time  appointed  for  the  departure  of 
the  vessel,  for  the  purpose  of  embarking  in  her  and  starting  on  the 
voyage,  when  he  found  that  the  state-rooms,  instead  of  being  fitted 
up,  as  was  agreed  for  the  accommodation  and  health  of  the  pas- 
sengers, had  no  space  between  them  for  ventilation  or  exercise,  in 
consequence  of  the  increased  number  that  had  been  constructed; 
that  seventy-two  cabin-passengers  had  been  engaged  for  the  voyage, 
and  were  to  be  taken  on  board,  the  price  as  to  many  of  them  having 
been  reduced  to  §275  each,  by  reason  whereof  the  ves.sel  was  over- 
crowded with  passengers  and  cargo,  and  rendered  incommodious 
and  dangerous  to  health  ;  that  the  libellant,  on  ascertaining  these 
facts,  refused  to  embark,  and  demanded  a  return  of  his  passage- 
money,  which  was  refused.     The  libel  was  filed  on  the  20th  of 
January,  1849,  claiming  a  return  of  the  passage-money,  and  da- 
mages to  the  amount  of  §1000.     The  claimants  filed  a  demurrer 


OF    EARXIXG   AND   PAYMENT   OF   FREIGHT.      477 

506.  Ill  order  to  give  jurisdiction  to  the  Admiralty 
in  rem.  where  the  contract  is  maritime  in  its  nature 
and  subject,  it  is  not  essential  that  the  ship  should 
have  entered  upon  the  performance,  and  that  the 
breach  should  have  occurred  in  the  course  of  the 
voyage.  Hence,  if  she  refuses  to  receive  the  cargo 
on  board,  when  it  is  at  her  side  ready  to  be  delivered, 
or  the  passenger  with  his  luggage  when  he  is  ready 
to  embark,  the  ship  is  bound,  and  the  party  ag- 
grieved may  proceed  in  the  Admiralty  in  rem. 
Maritime  contracts  do  not  depend  upon  locality,  but 
upon  the  subject-matter  and  the  nature  of  the  ser- 
vice to  be  performed ;  and,  when  entered  into  for 
the  conveyance  of  goods  or  persons  in  a  particular 
ship,  they  bind  the  ship  for  the  due  performance  of 
the  service.  The  ship  itself  in  specie  is  considered 
as  pledged  for  the  performance,  and  this,  whether 
the  vessel  be  in  the  immediate  employment  of  the 
owner,  or  be  let  by  a  charter-party  to  a  hirer  who  is 
to  have  the  whole  control  of  her.  The  obligation 
results  directly  from  the  contract,  and  not  from  the 
performance,  which  is  simply  in  fulfdment  and  dis- 
charge of  it.^ 

to  the  liljcl,  alleging  that  the  contract  on  which  it  was  founded 
was  not  one  of  which  the  Admiralty  could  take  cognizance;  and 
that  if  the  same,  or  any  part  of  it,  was  cognizable  in  the  Admi- 
ralty, no  cause  of  action  had  arisen  on  it  at  the  time  the  libel 
was  filed.  The  District  Court  overruled  the  demurrer,  and  prd- 
nouncc'd  fur  the  libcllant  for  the  return  of  his  passago-monoy,  and 
bis  damages.  The  claimants  appealed  to  the  (Circuit  (Jourt,  where 
the  decree  of  the  District  Court  was  alTirmcd. 

•  The  Pacific,  Ibid,,  Nelson,  J.  It  was  incidentally  held,  in 
this  ca.so,  in  answer  to  the  argument  of  the  claimants'  counsel,  that 
in  the  case  of  a  contract  with  a  material-man,  or  one  for  repairs, 
the  liability  of  the  vessel  arises  from  the  furni.shing  i>f  the  supplies, 


478  THE    LAT7    OF    SHIPPING. 

507,  The  contract  for  tlic  carriage  of  goods  being 
an  entire  one,  it  follows  that  the  shipper  is  not  bound 
to  pa}^  freight,  unless  there  is  a  performance  on  the 
part  of  the  carrier.  The  goods  must  be  delivered  at 
the  port  of  destination,  except  in  the  cases  hereafter 
specified,  or  no  freight  is  earned.  For  a  partial  con- 
veyance is  not  within  the  terms  or  intent  of  the  con- 
tract. And  it  is  no  answer  to  a  denial  of  freight 
that  the  whole  voyage  was  defeated  by  an  over- 
whelming calamity,  common  to  the  whole  adventure, 
which  prevented  a  delivery  of  the  goods,  and  ren- 
dered a  sale  of  them  necessary  at  an  intermediate 
port.  On  the  other  hand,  the  shippers  are  bound  to 
pay  the  full  freight  for  the  voyage,  if  the  cargo  is 
carried  to  the  port  of  destination,  and  specifically 
remains,  notwithstanding  at  its  arrival  it  is,  by  rea- 
son of  sea  damage,  utterly  ruined  and  worthless. 
And  after  the  shipment  of  the  cargo  on  the  voyage, 
the  shippers  have  no  right  to  demand  it  at  any  inter- 
mediate port,  short  of  the  port  of  destination,  with- 
out full  payment  of  the  freight  for  the  voyage, 
whether  the  cargo  arrive  there  in  a  damaged  or 
undamaged  state.' 

or  the  making  of  the  repairs.  Hence,  if  the  owner  should  refuse 
to  permit  the  repairs  for  which  he  had  contracted,  the  ship  would 
not  be  liable.  Short  of  actual  repairs  or  supplies,  the  parties  must 
look  to  the  master  or  owner  for  any  damages  in  case  of  a  breach  of 
contract,  as  no  lien  attaches  to  the  vessel  within  the  terms  of  the 
rule. 

'  Jordan  v.  Warren  Ins.  Co.,  1  Story's  R.  342,  352 ;  Miston  v. 
Lord,  Blatchford's  R.  355 ;  The  Ship  Nathaniel  Hooper,  3  Sum- 
ner's R.  554;  Caze  v.  The  Baltimore  Ins.  Co.,  7  Cranch.  R.  358, 
362 ;  Halwerson  v.  Cole,  1  Spears'  R.  323 ;  Hunter  v.  Princeps, 
10  East's  R.  378 ;  Hunter  v.  The  Union  Ins.  Co.,  1  Wash.  C.  C 
R.  530. 


OF    EARNING   AND   PAYMENT   OF   FREIGHT.      479 

508.  If,  however,  the  voyage  is  broken  up  in  con- 
sequence of  the  goods  being  in  such  a  state  as  would 
endanger  the  safety  of  the  ship  and  the  Hves  of  the 
crew,  if  carried,  no  freight  is  due ;  because,  indepen- 
dently of  any  duty  that  the  master  owes  to  the 
cargo,  the  interest  of  his  owners  dictates  the  break- 
ing up  of  the  voyage;  and  the  shipper  having 
derived  no  benefit  under  his  contract,  there  is  no 
principle,  legal  or  equitable,  that  would  subject 
him  to  any  part  of  the  freight.  And  if  the  cargo 
is  so  much  damaged  that  to  proceed  with  the  voyage 
would  render  it  worthless,  it  is  the  duty  of  the 
master  to  land  and  sell  it  at  the  port  of  necessity, 
in  the  absence  of  instructions  from  the  shipper,  even 
though  it  may  be  in  a  condition  to  be  carried  in 
.specie  to  the  port  of  destination,  and  there  landed. 
In  cases  of  necessity  happening  during  the  voyage, 
tlie  master  is,  by  law,  created  the  agent  for  the 
benefit  of  all  concerned ;  and  his  acts  done  under 
such  circumstances,  in  the  exercise  of  a  sound  dis- 
cretion, are  binding  upon  all  parties  in  interest. 

509.  And  in  such  a  case  the  carrier  is  entitled,  it 
seems,  to  no  freight.  In  the  case  of  the  Ann  D. 
Richardson,'  it  was  held  that  the  master  having 
failed  to  deliver  the  cargo  accordiug  to  the  bill  of 
lading,  and  there  having  been  no  waiver  of  per- 
formance, either  express  or  implied,  hy  the  shipper 
or  his  agent  at  the  port  of  distress,  the  owner  of  the 
vessel  was  not  entitled  to  freight,  notwithstanding 
the  damaged  state  of  the  cargo  justified  its  sale  hy 
the  master  at  tlic  jiort  of  distress;  tliat  tlic  agency 


»  Blatchford's  II.  358,  note. 


480  THE     LAW    OF    SHIPPING. 

of  the  master  on  behalf  of  the  shipper  at  the  port  of 
distress,  arising  out  of  the  necessities  occasioned  by 
the  disaster,  was  limited  to  the  sale  of  the  cargo ; 
that  no  case  had  extended  it  farther,  and  that 
sound  principles  forbade  any  further  interference 
"with  the  rights  of  the  shipper. 

510.  In  Halwerson  v.  Cole,^  the  Court  said  that 
the  only  cases  where  the  owner  of  the  goods  is 
bound  to  pay  full  freight  without  delivery  are  those 
in  which  the  goods  have  been  thrown  overboard  for 
the  general  benefit,  or  so  used  as  to  make  the  loss  of 
them  a  subject  of  general  average.     "  In  such  cases," 

■  1  Spear's  (S.  C.)  R.  321.  This  was  an  action  to  recover  the 
amount  of  forty-five  dollars  twenty-two  cents,  for  freight,  being 
the  balance  due  for  freight  of  twenty  bales  of  hay,  and  one  hun- 
dred and  five  bags  of  corn,  &c.,  &c.,  shipped  on  board  of  the 
schooner  United  States,  and  to  be  delivered  at  Pilatlca,  East 
Florida.  It  was  proved  at  the  trial  that  the  twenty  bales  of  hay 
and  the  one  hundred  and  five  bags  of  grain  were  shipped  on  board 
of  the  schooner  United  States,  of  which  the  plaintiff  was  captain, 
by  Zealy  &  Wade,  the  agents  of  the  defendant,  on  the  27th  day 
of  October,  1840 ;  and  that  the  amount  of  freight  to  be  charged 
was  sixty-six  dollars  twenty-five  cents,  at  two  dollars  pei  bale  of 
hay,  and  twenty-five  cents  per  bag  of  grain.  The  schooner,  before 
arriving  at  Pilatka,  put  into  St.  Augustine,  Florida,  in  distress, 
having  received  damage  from  a  gale;  and  it  was  found,  on 
examining  her  cargo,  that  the  twenty  bales  of  hay  were  damaged, 
and  were  ordered  to  be  sold,  for  the  benefit  of  the  owners,  by  the 
surveyors  of  the  port  of  St.  Augustine,  and  that  the  net  amount 
of  the  sale,  after  deducting  the  expenses  attending  it,  amounted  to 
thirty-five  dollars,  ciglity  cents.  The  balance  of  the  cargo,  to  wit, 
the  one  hundred  and  five  bags  of  grain,  were  delivered  at  the  port 
of  destination.  The  defendant  was  also  charged  with  the  sum  of 
fourteen  dollars,  twenty-seven  cents,  being  his  proportion  of  an 
account  for  general  average. 


OF   EARNING   AND   PAYMENT   OF   FREIGHT.      481 

the  Court  observed,  "the  payment  of  the  general 
average  is  a  substitution  for  delivery,  and  subjects 
the  owner  to  the  payment.  There  are  some  cases 
where  the  owner  is  liable  to  pay  partial  freight,  or 
pro  rata  intlneris ;  but  the  obligation  to  pay  this  can 
arise  only  from  an  agreement  to  accept  the  goods  at 
a  place  short  of  the  place  of  destination.  In  the 
case  of  Hunter  v.  Princeps,^  the  vessel  had  been  cap- 
tured, recaptured,  and  carried  into  St.  Kitt's,  where 
she  was  wrecked,  and  the  goods  sold  by  order  of  the 
Court  of  Admiralty,  and  on  the  application  of  the  cap- 
tain, but  without  orders.  The  sale  was  made  for  the 
benefit  of  all  concerned,  and  the  application  on  the 
part  of  the  captain  for  the  sale  honafide.  Yet  it  was 
held  that  the  shipper  was  not  bound  to  pay  freight 
even  pro  rata  intlneris,  but  was  entitled  to  recover 
for  his  goods,  without  any  deduction  for  freight. 
The  only  ground  upon  which  the  plaintifl"s  case 
can  be  placed,  with  any  appearance  of  plausibility, 
is,  that  in  the  condition  in  which  the  captain  was 
placed,  he  was  so  far  the  agent  of  the  shipper  as  to 
be  authorized  to  determine  on  the  expediency  of 
selling  the  damaged  goods,  for  the  benefit  of  the 
owner.  Now,  it  does  not  seem  to  me  that  this  posi- 
tion can  be  maintained.  There  is  no  authority  to 
sustain  it.  The  master  is  the  general  agent  for  the 
ship-owners,  and  cases  may  arise  in  which  his  act 
might  bind  both  the  insured  and  insurer;  but  I 
have  found  no  case  where,  on  the  question  of  freight, 
he  is  considered  the  agent  of  the  shipper,  in  a  matter 
of  personal  interest  to  himself.  It  would  involve 
the  abstirdify  that  one  of  two  parties  to  a,  contract 

«  10  East.  II.  378. 
31 


482  THE    LAW    OF    SIIIPriNG. 

was  the  agent  of  the  other,  to  determine  the  expe- 
diency and  necessity  of  dispensing  with  the  perform- 
ance of  his  part  of  the  agreement.  But,  besides  this, 
the  HabiUty  of  such  an  agency  to  abuse,  and  the 
strong  temptation  to  abuse  it,  are  sufficient  reasons 
why  no  such  principle  should  be  estabhshed  as  a 
part  of  the  law  of  the  contract.  Cases  may  arise,  in 
which  there  may  exist  a  necessity  for  disposing  of  a 
damaged  cargo.  If  it  be  for  the  general  benefit,  it 
may  be  a  subject  of  general  average.  But,  in  all 
other  cases,  the  shipper  has  a  right  to  insist  on  the 
delivery  of  the  goods,  as  a  condition  precedent  to  the 
payment  of  freight.  It  is  no  answer  to  say  the  ship- 
owner acted  bona  fide,  and  the  sale  was  for  his 
benefit.  He  has  commissioned  no  one  to  judge  for 
him  on  that  subject.  He  may  prefer  to  have  the 
goods  in  a  damaged  state.  It  is  his  right,  and  can- 
not be  withheld  from  him  without  a  forfeiture  of 
the  demand  for  freight." 

511.  It  is  not  pretended,  and  there  is  no  authority 
for  subjecting  the  shipper  to  freight,  where  the  port 
of  distress  and  of  acceptance  of  the  cargo  is  the  port 
of  shipment,  and  where  no  part  of  the  voyage  has 
been  performed.^  The  right  to  freight  does  not 
commence  until  the  ship  has  broken  ground  and 
begun  the  voyage  ;  and  therefore  no  partial  payment 
can  be  claimed  for  goods  laden  on  board,  if  the  ship 
is  prevented,  even  without  the  fault  of  the  master, 
from  setting  forth  on  the  voyage.^ 

*  Miston  V.  Lord,  Blatcbford's  R.  357 ;  vide,  also,  Jordan  v. 
Warren  Ins.  Co.,  1  Story's  11.  352;  Violett  v.  Stettinius,  5 
Cranch,  C  C.  R.  559 ;  Scott  v.  Libby,  2  Jobn  R.  336. 

^  Curling  V.  Long,  1  Bos.  &  Pul.  634. 


OF   EARNING   AND   PAYMENT   OF   FREIGHT.      483 

512.  There  are  exceptions  to  the  general  rule 
that  no  freight  is  due  unless  the  goods  are  delivered 
at  the  port  of  destination.  But  they  stand  on  spe- 
cial grounds.  If  it  is  shown  that  the  non-arrival 
was  occasioned  by  no  defixult  or  inabihty  of  the 
carrier  ship,  but  was  occasioned  by  the  defiiult  or 
waiver  of  the  merchant  shipper,  then,  upon  the 
ordinary  principles  of  commercial  law,  full  freight 
is  due.  In  the  former  case,  the  merchant  shipper 
cannot  avail  himself  of  his  own  default  to  escape 
the  payment  of  freight ;  in  the  latter  case,  he  dis- 
penses with  the  entire  fulfilment  of  the  original  con- 
tract for  his  own  interest  and  purposes.^ 

513.  To  perfect  the  right  to  freight,  there  must 
be  not  only  a  conveyance  of  the  goods,  but  a  de- 
livery of  them,  The  conveyance  and  deUvery  of 
the  cargo  is  a  condition  precedent,  and  must  be  ful- 
filled. But  if  the  delivery  be  prevented  by  the  act 
of  the  shipper,  or  if  he  dispense  with  it,  the  master 
may  then  demand  his  whole  freight.  Or,  if  the 
voyage  is  performed,  and  the  goods  tendered  to  the 
consignee  at  the  port  of  destination,  l)ut  an  order  of 
the  government  of  the  country  prevents  their  being 

'The  Ship  Nathaniel  Hooper,  3  Sumner's  R.  342;  Bork  v. 
Norton,  2  M'Lcan's  Jl.  422;  Ilalwcrson  v.  Colo,  1  Spear's  11. 
323.  Upon  the  Kuhject  of  tlii.s  cIkiiiIi  r,  llio  cases  arising  in  the 
Courts  of  common  law  have  hcon  freely  eited;  and  thoy  furnish 
a  safe  guide  in  the  investigation  of  questions  of  this  nature.  "  In 
the  interpretation  of  eoniincrcial  contracts, "  says  Mr.  Justice 
Story  (3  Sumner's  II.  .Orj.^ij,  "the  decisions  of  these  (Jourts  (the 
Courts  of  common  law)  are  entitled  to  the  fullest  consideration 
and  weight ;  for,  in  general,  they  guide,  although  they  <l'i  n  t 
always  control,  Courts  of  Admiralty  in  the  exercise  of  their  own 
judgment  iu  the  interpretation  of  such  contracts." 


484  THE    LAW     OF     SHIPPING. 

landed,  freight  is  due  nevertheless.  This  doctrine 
was  declared  in  the  case  of  Morgan  v.  The  Bank  of 
North  America/  and  is  in  conformity  with  the 
French  ordinance  of  1G81/  (upon  which,  indeed,  the 
decision  is  founded,)  which  declares  that  "  if  it  hap- 
pen that  commerce  be  prohibited  with  the  country 
to  which  a  ship  is  in  the  course  of  sailing  (en  route), 
and  the  ship  be  obliged  to  return  with  its  lading, 
there  shall  be  due  only  the  freight  outward,  though 
the  ship  be  hired  out  and  home."  The  case  is  dis- 
tinguishable from  that  of  a  non-arrival  in  port  by 
reason  of  a  blockade,  for,  in  the  latter  case,  the  out- 
ward voyage  is  not  performed ;  and  it  is  impossible 
to  say  that,  if  there  had  been  no  blockade,  it  would 
have  been  performed.^ 

514.  An  interruption  of  the  regular  course  of  the 
voyage  happening  without  the  fault  of  the  owner, 
does  not  operate  to  deprive  him  of  his  freight,  pro- 
vided the  ship  afterwards  proceed  with  the  cargo  to 
the  port  of  destination,  as  in  the  case  of  capture  and 
recapture,  or  as  in  the  case  of  detention  arising  from 
an  embargo  at  the  port  of  departure,  or  in  the  course 
of  the  voyage,  or  from  a  blockade  or  hostile  invest- 
ment of  the  port  of  departure,  after  the  voyage  has 
actually   commenced."      AVe   have   elsewhere    seen 

1  4  Dull.  421. 

^  Liv.  .8,  tit.  3,  art.  15.     Vide  also  Code  do  Com.,  art.  299. 

'  Vide,  upon  the  subject  of  this  section,  Lane  v.  Penniman,  4 
Mass.  91;  The  Volunteer,  1  Sumner,  551;  Certain  Logs  of 
Mahogany,  2  Sumner,  589;  Bradstreet  v.  Baldwin,  11  Mass.  R. 
229;  Palmer  v.  Lorillard,  10  John.  II.  346. 

*  Abbott  on  Shipp.,  p.  493 ;  Hadley  v.  Clark,  8  Terra.  R.  259 ; 
M'Bride  v.  Mar.  Ins.  Co.,  5  John.  308 ;  Baglies  v.  Fettyplace,  7 


OF   EARNING   AND   PAYMENT   OF   FREIGHT.      485 

that,  if  the  cargo  is  of  a  perishable  nature,  and  can- 
not endure  the  delay,  the  shipper  is  entitled  to  re- 
ceive it,  paying  to  the  carrier  a  reasonable  sum  for 
the  time,  labor,  and  expense,  already  bestowed  upon 
the  contract.^  If,  on  the  other  hand,  the  voyage  is 
broken  up,  after  its  commencement,  by  war  or  inter- 
diction of  commerce  with  the  place  of  destination, 
the  contract  is  dissolved,  and  the  freight  gone.^ 

515.  We  are  now  briefly  to  notice  some  of  the 
more  important  principles  respecting  freight,  pro- 
ceeded upon  in  the  administration  of  Prize  Law.  It 
should  be  observed,  however,  that  the  doctrines  of 
Prize  Courts,  as  to  freight,  are  not  generally  appli- 
cable to  cases  of  mere  civil  commercial  adventures, 
or  cases  of  civil  salvage.  Courts  of  Prize  exercise  a 
very  peculiar  and  extensive  jurisdiction,  sui  generis, 
upon  very  enlarged  views,  and  a  sort  of  international 
discretion,  which  do  not  belong  to  the  common  func- 
tions of  other  Courts,  or  even  of  Courts  of  Admi- 
ralty, in  the  exercise  of  their  jurisdiction,  as  In- 
stance Coui'ts.^ 

Mass.  325;  The  Racehorse,  3  Rob.  Ad.  R.  101;  Bcal  v.  Tiiomp- 
son,  3  Bos.  &  Pul.  420,  431.  If  the  vnyugc  be  broken  up,  and 
lost  upon  the  passage  by  capture,  so  as  to  cause  a  complete  de- 
feasance of  the  undertaking,  the  freight  is  gone,  notwithstanding 
there  was  a  sub.scqucnt  recapture.  The  Ilirani,  3  Rob.  Ad.  R. 
180;  I'almer  v.  Lorilhird,  IG  John.  R.  348;  The  Isabella,  4  Rob. 
Adiii.  77.  As  to  deviation,  vide  Soutcr  v.  Baymorc,  7  Barr,  415  ; 
The  Ninctta,  Crabbe's  R.  5.'54. 

1  Vide  Flanders  on  Maritime  Law,  chap.  5,  tit.  Dissolution  of 
tlic  Contract  of  Affreightment. 

M.iddard  v.  Lopez,  10  Kast,  520;  The  Hiram,  .'5  Rob.  .Vdm. 
180;  Scott  V.  Libby,  2  John.  R.  330. 

»  The  Ship  Nathaniel  Hooper,  3  Sum.  542,  550. 


480  THE    LAW    OF    SHIPPING. 

510.  There  is  a  broad  diflerence  between  the  doc- 
trines of  P^nglish  and  American  prize  law  upon  the 
subject  of  freight,  arising  from  the  wholly  distinct 
and  variant  principle  upon  which  those  doctrines 
are  based.  The  Courts  of  the  United  States  do  not 
admit  that  the  capture  of  a  neutral  ship  operates  to 
dissolve  the  contract  of  affreightment.  They  hold 
that  it  only  suspends  it ;  and,  when  restitution  takes 
place,  the  parties  are  restored  to  their  antecedent 
rights.  The  vis  major  having  ceased,  the  jus  jMst- 
Umiuii  operates  upon  the  case.'  The  English  Courts, 
on  the  contrary,  hold  that  a  capture  of  the  ship  and 
cargo,  followed  by  an  unlivery  of  the  cargo,  by  order 
of  the  priz6  Court  defeats  the  contract.  Upon  resti- 
tution taking  place,  if  it  is  not  a  concurrent  act,  that 
is,  if  ship  and  cargo  are  not  restored  at  the  same 
time,  the  master  is  not  bound  to  await  the  result  of 
the  proceedings  as  to  the  cargo,  but  acquires  a  right 
to  proceed,  and  a  right  to  his  full  freight.^ 

*  The  Ship  Nathaniel  Hooper,  3  Sum.  542,  556. 

-  The  doctrine  of  English  prize  law  upon  this  subject  may  be 
found  in  the  following  cases: — The  Racehorse,  3  Rob.  101;  The 
Martha,  3  Rob.  lOG,  note;  The  Iloffuung,  6  Rob.  231;  The 
Wilhelmina  Elconora,  3  Rob.  234.  In  the  case  of  The  Race- 
horse, a  Rritish  ship  was  freighted  from  Liverpool,  in  ballast,  to 
St.  Martin's  and  Lisbon,  to  bring  a  cargo  of  fruit  to  Ireland,  and 
was  taken  on  her  return  voyage  by  a  French  privateer  off  Fal- 
mouth, and  afterwards  recaptured  and  brought  into  Falmouth. 
Upon  the  capture,  the  master  was  taken  out ;  and,  owing  to  that 
fact,  no  claim  was  given  into  the  Court  of  Admiralty  for  the  cargo 
until  the  17th  of  July,  the  ship  having  been  restored  by  consent 
on  the  2d  of  July;  and  restitution  of  the  cargo  was  not  decreed 
until  the  IGth  of  November.  A  claim  was  made  for  the  full 
freight  of  the  voyage,  although  the  vessel  refused  to  wait  until 
the  restitution  of  the  cargo,  the  owner  of  the  ship  being  dead, 


OF   EARNING   AND   PAYMENT   OF   FREIGHT.      487 

517.  Bv  our  law,  no  freight  is  due,  unless  tlie 
master,  upon  the  decree  of  restitution  passing,  pro- 

and  bis  administrator  declining  to  interfere.     Lord  Stowell  allowed 
the  full  freight,  upon  the  ground  that  the  ship  was  not  bound  to 
wait.     "  The  case  of  the  cargo,"  he  observed,  "  was  litigated  ;  and 
is  the  Court  to  say  that  the  ship  was  to  stay,  and  wait  the  result 
of  the  proceedings,  when  she  herself  had  been  restored,  whilst  the 
cargo  was  contested,  and  might  be  condemned,  and  whilst  it  was 
by  no  means  clear  that  any  cargo  would  remain  to  be  carried  on  ? 
This  would  be  an  unreasonable  expectation.     I  do  not  say  that  a 
party  is  to  act  in  a  hasty  manner,  and  to  run  away  immediately 
on  the  restitution  of  the  ship.     Something  is  to  be  conceded  in 
the  way  of  accommodation;  a  reasonable  time  is  to  be  allowed; 
and  if  it  is  not  allowed,  a  proportion  of  the  freight  may  be  de- 
ducted.    But  I  cannot  say  that  a  ship  shall  wait  all  this  time  for 
the  mere  chance  of  taking  on  the  cargo,  if  eventually  it  should  be 
restored.     It  is  said  that  the  contract  was  totally  dissolved;  but 
by  whose  means  happened  it  that  it  was  so  dissolved  ?     It  was  in 
no  degree  owing  to  the  owner  of  the  ship,  who  might  have  carried 
on  the  cargo,  but  that  the  owner  of  the  cargo  was  not  ready  to 
proceed.     Though  he  acted  as  discharged  from  his  contract,  he  ia 
substantially  entitled  to  the  benefit  of  it.     On   these  grounds,  I 
am  of  opinion  that  the  ship  is  entitled  to  her  whole  freight."     He 
deducted,  however,  from  the  freight  its  contributory  share  for  the 
salvage  on  the  recapture.     In  the  case  of  The  Martha,  the  circum- 
stances were  difTercut.     An  American  ship,  bound  from  America 
to  Amsterdam,  was  captured  in  the  Channel  by  a  British  cruiser, 
and  brought  in  on  tlic  20th  of  December,  1800;  and  the  ship  was 
restored  on  the  10th  of  January,  1801.     On  the  15th  of  January, 
a  coramis-sion  of  unlivery  passed;  and  on  the  IGth,  one-fourth  of 
the  goods  composing  the  cargo  was  restored.     It  I)eing  necessary, 
in  order  to  get  at  these  goods,  to  unliver  the  rest  of  the  cargo,  the 
whole  was  accordingly  unlivcrcd.     The  claimant  of  the  goods  in- 
sisted on  the  ship's  taking  them  on  board  again,  offering  to  be  at 
the  expense  of  the  rcshipnicnt,  and  to  have  them  carried  on  to 
their  destination  upon  the  original  freight.     This  was  rrfu.scd  by 
the  master;  and  the  question  was,  whether  he  was  entitled  to  full 
freight  on  these  goods  or  not.     Lord  Stowell  gave  the  full  freight. 


488  THE    LAW    OF    SHIPPING. 

ceeds  to  the  port  of  destination,  and  delivers  the 
cargo.  It  was  held,  in  the  case  of  The  Copenhagen/ 
that  if  a  neutral  ship  is  driven  into  the  port  of  a 
country  at  war,  and  is  seized,  together  with  the 
cargo,  upon  suspicion  that  both  are  enemy  property, 
but  are  finally  restored,  not,  however,  concurrently, 
but  at  difierent  times,  the  cargo,  if  first  restored,  and 
sent  on  in  other  vessels,  must  pay  to  the  original 
ship  ^)?*o  rata  freight.  This  is,  doubtless,  the  correct 
principle,  in  a  case  where  the  goods  are  sent  on  with 
the  ship-owner's  consent.  But,  suppose  he  should 
insist  upon  detaining  the  goods,  until  the  event  of 
the  proceedings  against  the  ship  was  known.     Would 

upon  the  mere  dry  authority  of  a  decision  of  Sir  James  Marriott, 
which  he  thought  himself  bound  to  follow.  The  subsequent  case 
of  The  Hoffnung  was  the  case  of  a  capture  of  a  neutral  ship  and 
cargo  in  August,  1815,  made  by  a  British  cruiser.  On  the  1st  of 
September,  a  decree  of  restitution  of  the  ship  was  passed;  and  a 
commission  of  unlivery  of  the  cargo  was  on  the  same  day  taken 
out  by  the  captors,  and  the  unlivery  was  completed  on  the  26th  of 
September.  Notice  was  given  to  the  master,  before  the  unlivery 
of  the  whole  of  the  cargo,  that  he  would  be  required  to  carry  it  on 
the  voyage.  The  claim  for  the  cargo  was  given  in  on  the  24th 
September;  and  on  the  28th  of  the  same  month  the  cargo  was 
restored.  The  master  was  then  required  to  take  it  on  board 
again ;  but  he  refused,  and  made  a  claim  for  full  freight.  Lord 
Stowell,  upon  the  authority  of  the  case  of  The  Martha,  held  the 
ship  entitled  to  full  freight.  "  The  contract  between  the  parties," 
he  said,  "  ceased  by  the  act  of  unlading.  At  the  moment  of  sepa- 
ration, the  vessel  acquires  a  right  to  proceed;  and  it  is  by  accident 
only  that  she  continues  here.  That  accident  cannot,  I  think,  have 
the  effect  of  reviving  the  contract  which  had  been  before  dissolved." 
The  reader  will  find  a  very  able  criticism  of  the  doctrine  of  the.se 
cases,  by  Judge  Story,  in  the  case  of  The  Ship  Nathaniel  Hooper, 
3  Sum.  544. 

'  1  Rob.  Adra.  R.  289. 


OF   EARNING   AND   PAYMENT    OF   FREIGHT.      489 

he  not  be  entitled  to  say  :  "  I  claim  the  full  benefit  of 
my  contract ;  if  the  ship  is  condemned,  I  lose  my 
freight ;  if  restored,  I  insist  upon  going  on,  and  per- 
forming the  contract  ?"  Would  he  not  have  the  right, 
in  a  case  where  the  cargo  is  of  such  a  nature  that  it 
could  endure  the  delay,  to  detain  it  a  reasonable 
time,  to  ascertain  the  result  of  the  prize  proceedings? 
By  our  law,  as  already  observed,  if  the  ship  is  first 
restored,  the  master,  to  entitle  himself  to  freight, 
must  await  the  result  of  the  proceedings  as  to  the 
cargo,  and  carry  it  on  to  the  port  of  destination. 
The  same  principle  obviously  applies  when  the  cargo 
is  first  restored. 

« 

518.  Where  a  neutral  vessel  is  captured  on  ac- 
count of  the  cargo,  the  ship  is  discharged  with  full 
freight,  because  no  blame  attaches  to  her;  she  is 
ready  and  able  to  proceed  to  the  completion  of  the 
voyage,  and  is  only  stopped  by  the  incapacity  of  the 
cargo.  This  rule  was  adopted  for  the  benefit  of  the 
ship-owners,  and  to  prevent  the  rights  of  war  from 
pressing  with  too  much  severity  upon  neutral  navi- 
gation. If,  therefore,  a  neutral  vessel  is  captured 
coming  from  an  enemy's  port,  under  suspicion  of 
having  on  board  the  property  of  the  enemy — a  cargo, 
which  she  has  a  perfect  right  to  carry,  provided  it 
was  not  attended  with  any  circumstances  of  ill  fiiith 
or  unneutral  conduct,  in  such  a  case  the  demand  for 
freight  is  an  al)S()lute  demand.  The  captor  is  bound 
to  discliargc  the  vessel,  and  pay  the  stiptdnlcd 
freiglit.'  

»  The  Fortuna,  Ivlwarda'  Adin.  II.  .00;  Tlie  Prosper,  IM'l.  72, 
70;  The  Dcr  iMdir,  I  Hob.  Ad.K.  314;  The  Ann  Green,  1  (J;illi«. 
R.  283. 


490  THE     LAW    OF     SHIPPING. 

519.  Where  the  ship  belongs  to  an  enemy,  and 
the  goods  are  neutral,  the  captor,  if  he  carries  the 
goods  on  to  the  port  of  actual  destination,  is  entitled 
to  the  freight,  on  the  ground  that  the  contract  has 
been  fulfillod.  The  captor  stands  in  the  place  of 
the  owner  of  the  ship,  and  is  held  entitled  to  the 
price  of  the  services  which  have  been  performed  in 
the  execution  of  the  contract.^  An  admitted  excep- 
tion to  the  general  rule  is,  where  the  proceeds  of  the 
goods  are  ultimately  intended  for  the  country  to 
which  the  captors  have  brought  them,  and  they  have 
been  saved  from  the  grasp  of  the  enemy  by  the  cap- 
ture, then  full  freight  is  allowed.^ 

520.  To  the  general  rule,  that  the  neutral  carrier 
of  enemy's  property  is  entitled  to  his  freight,  there 
are  exceptions  which  it  is  well  to  notice.  If  the 
neutral  be  guilty  of  fraudulent  and  unneutral  con- 
duct, or  has  interposed  himself  to  assist  the  enemy  in 
carrying  on  the  war,  he  is  justly  deemed  to  have 
forfeited  his  title  to  freight.  Hence,  the  carrying  of 
contraband  goods  to  the  enemy ;  the  engaging  in  the 
coasting  or  colonial  trade  of  the  enemy ;  the  spolia- 
tion of  papers,  and  the  fraudulent  suppression  of 
enemv  interests,  have  been  held  to  affect  the  neutral 
witli  the  forfeiture  of  freight,  and  in  cases  of  a  more 
flagrant  character,  such  as  carrying  dispatches  or 
hostile  military  passengers,  an  engagement  in  the 
transport   service  of  the  enemy,  and  a  breach  of 


'  The  Vrow  Anna  Catharina,  6  Rob.  2G9;  The  Fortuna,  4  Rob. 
R.  278 ;  The  Diana,  5  Rob.  R.  G7. 
"  The  Ann  Green,  1  Gallis.  R.  283. 


OF   EARNING   AND   PAYMENT    OF   FREIGHT.      491 

blockade,  the  penalty  of  confiscation  of  the  vessel 
has  also  been  mtlicted.^ 

521.  Although  it  is  the  policy  of  the  general  mari- 
time law  to  make  the  freight  dependent  upon  the 
performance  of  the  voyage,  the  parties  may,  by  ex- 
press agreement,  control  the  operation  of  the  general 
principle.  If,  therefore,  they  expressly  or  impliedly 
agree  that  a  part  of  the  freight  shall  be  paid  abso- 
lutely, and  not  depend  upon  the  performance  of  the 
voyage,  they  are  at  liberty  to  do  so.''  The  general 
principle,  however,  deducible  from  the  maritime 
codes,  and  sanctioned  by  the  English  and  American 
Courts,  is  clearly  this,  that  if  freight  is  paid  in  ad- 
vance, and  the  goods  are  not  carried  by  reason  of 
any  event  not  imputable  to  the  shipper,  it  is  to  be 
repaid,  unless  there  be  a  special  agreement  to  the 
contrary. 

522.  Chancellor  Kent  (then  Chief  Justice),  in  the 
case  of  Watson  v.  Duykinck,^  thoroughly  examined 
the  doctrine  of  the  maritime  law  upon  this  point, 
and  adjudged  it  in  conformity  to  the  principle  here 
stated.  Where  the  execution  of  the  contract  is  pre- 
vented by  the  fault  of  the  shipper  or  passenger  (pas- 
sage-money and  freight  being  governed  l)y  the  same 
rule),  till'  inoiu'v  pnid   in  :idvance  is  not  recoverable 

1  The  (!omincm;ii,  I   Wli.at.  K.  382. 

2  Abbott  on  Shijip.,   I'.M. 

»  3  .I'.liii.  11.  3'25.  Vide  also  Lonion  v.  Gordon,  8  C:\r.  Sc  Vny. 
392  J  Andrew  v.  Moorliouso,  f)  T;iimt.  V>^) ;  (Jilldi  v.  Simpkin,  t 
Carnp.  241  ;  Tbo  Urifj  Lavinia,  1  I'etcrs'  Adni.  Ih'.c  lUC;  I'ilman 
V.  Hooper,  .'5  Siinim.  H.  AO,  0(5;  .^lansfield  v.  Maitlaiid.  I  H.  k  A. 
582;  Cope  v.  Dodd,  1  Harris,  II.  .'5.".. 


492  THE    LAW    OF     SHIPPING. 

back.  It  is  an  ancient  form  of  expression,  that 
freight  is  earned  "  empty  for  full,"  when  the  disap- 
pointment is  owing  to  the  misfortune  or  neglect  of 
the  freighter,  and  no  laches  are  imputable  to  the 
master  or  owner  of  the  sliip.^ 

523.  It  has  been  supposed  that  there  is  a  distinc- 
tion between  payment  of  freight  and  an  advance  of 
it.  This  distinction  was  urged  in  the  case  of  Griggs 
V.  Austin,  and  it  was  contended  that  the  freight  was 
recoverable  back  in  the  latter  case,  but  not  in  the 
former.  But  this  distinction  is  unsupported  by  either 
reason  or  authority.  An  advance  of  freight  means 
the  same  thing  as  payment  of  freight  beforehand  or 
in  advance ;  whether  the  whole  is  paid,  or  a  part, 
makes  no  difference. 

524.  If  the  cargo  consists  of  living  animals, 
whether  men  or  cattle,  and  some  of  them  should  die 
during  the  voyage,  without  any  fault  or  neglect  of 
the  persons  belonging  to  the  ship,  and  1;here  is  no 
express  agreement  respecting  the  pajanent  of  freight, 
the  general  rule  is  that  freight  shall  be  paid  for  the 
dead  as  well  as  for  the  living.  If,  however,  the 
agreement  be  to  pay  freight  for  the  transportation  of 
them,  then  no  freidit  is  due  for  those  that  die  on 
the  voyage,  because  as  to  them  the  contract  is  not 
performed.^ 

*  1  Peters'  Adm.  R.  207,  note ;  Detouches  v.  Peck,  9  John.  R. 
210. 

»  Abbott  on  Shipp.,  p.  498 ;  "Walcott  v.  Eagle  Ins.  Co.,  4  Pick. 
434;  Kent's  Com.  vol.  .3,  p.  225;  Dig.  14,  2,  10;  Roccus,  n. 
70,  77,  78.     "When  slaves  or  horses,"  says  Roccus,  "are  carried 


OF   EARNING   AND   PAYMENT    OF   FREIGHT.      493 

525.  Where  goods  are  sent  in  a  general  ship,  and 
the  parties  enter  into  no  agreement  respecting  the 
freight,  the  amount  will  be  determined  by  the  usage 


on  frcigbt,  and  any  of  tliem  die  on  board,  is  freight  payable  for 
such  as  are  dead  ?  Three  cases  are  to  be  noticed.  First,  If  the 
charter-party  express  that  freight  shall  be  paid  for  so  many  men 
or  animals  as  shall  be  put  on  board,  and  any  of  them  die  before  the 
ship  reaches  her  destined  port,  freight  is  due,  because  the  contract 
is  fulfilled;  and  it  is  a  principle  of  law,  that  a  person  who  has  en- 
gaged to  do  a  particular  act  for  a  certain  reward,  is  entitled  to 
receive  the  reward,  if  he  has  been  prevented  from  performing  his 
engagement  by  any  other  means  than  his  own  fault.'  The  second 
case  is  where  freight  is  promised  for  conveying  men  or  animals  to 
a  certain  place,  and  before  the  ship's  arrival  at  that  place  any  of 
them  die,  freight  is  not  payable  for  those  that  arc  dead,  because 
the  contract  is  not  complete  by  which  freight  was  promised  for 
their  actual  conveyance.  Freight  is  not  due  in  this  case,  even 
though  the  loss  happen  without  any  fault  on  the  part  of  the  mari- 
ners J  for  it  is  a  mutter  of  indifference  how  the  accident  occurred, 
since  the  payment  of  freight  was  conditional,  to  wit,  if  the  slaves 
are  conre^cd.  The  third  case  is,  when  it  docs  not  appear  precisely 
for  what  freight  was  to  be  paid ;  whether  for  taking  the  animals 
into  the  ship,  or  for  their  actual  conveyance.  In  this  case,  freight 
must  be  paid,  if  they  are  merely  taken  on  board,  although  the 
animals  or  slaves  should  die  before  the  ship  reaches  the  destined 
port.  The  reason  is,  that  it  does  not  appear  expressly  what  was 
intended ;  and  as  no  fault  is  shown  on  the  part  of  the  sailors, 
the  contract  remains  entire,  and  the  whole  freight  must  be  paid. 
A  doubtful  contract  must  be  construed  against  the  shipper." 

'  Mr.  Ingcrsoll,  the  translator  of  Roccus,  obsorvos  as  follows,  upon  this 
note  :  '♦Our  author  seems  to  forget  the  just  and  liberal  principles  which 
he  expressed  in  Note  XXIX.  If  the  doctrine  quoted  from  tlie  civil  law 
govern  this  case,  it  will  apply  equally  well  to  that  which  ho  states  in  the 
ensuing  note,  on  which  ho  gives  a  contrary  opinion.  'The  word  fretght 
implies  ex  »i  tmniui,  that  somctliing  is  to  ho  carried  from  one  place  to  an- 
other. Therefore,  whenever  freight  is  stipulatcil  for,  it  must  be  \inder- 
Btood  to  be  for  actually  carrying  the  things  or  the  persons  shijiped,  and 
not  for  the  mere  permitting  them  to  bo  put  on  board.'  " 


494  THE     LAW    OF     SHIPPING. 

of  trade.  If  there  be  a  special  agreement,  the  rights 
of  the  parties  will  be  governed  by  it,  and  no  obliga- 
tion will  be  intended  beyond  those  which  are  im- 
posed by  it.^ 

52G.  Tn  the  case  of  a  charter-party,  where  the 
charterer  hires,  either  the  whole  or  a  specified  part 
of  the  vessel,  he  is  bound  to  pay  the  stipulated 
freisiht,  whether  he  makes  use  of  the  whole  or  the 
part,  as  the  case  may  be,  or  not.  If  the  whole  ves- 
sel is  chartered  to  take  a  cargo,  at  certain  specified 
rates  per  ton,  if  the  freighter  does  not  furnish  a  full 
cargo,  the  owner  of  the  vessel  is  entitled  to  freight, 
not  only  for  the  cargo  actually  put  on  board,  but 
also  for  what  the  vessel  could  have  taken,  had  a  full 
cargo  been  furnished.^ 

527.  Where,  by  the  terms  of  the  charter-party, 
the  vessel  is  to  go  abroad  for  a  cargo  to  a  designated 
port,  and  upon  her  arrival  there,  no  cargo  is  put  on 
board  in  pursuance  of  the  covenants  of  the  charter- 
party,  the  merchant  is  liable  to  pay  the  whole 
freight  which  would  have  been  earned  if  he  had 
complied  with  his  agreement.  This  is  the  doctrine 
of  the  miiritime  law,  and  it  is  in  accordance  with  the 
common  law.^ 

528.  If  it  is  a  condition  of  the  charter-party  that 
the  merchant  shall  put  on  board  the  specified  cargo, 
or  shall  load  the  whole  vessel,  or  a  specified  part  of 

»  Robertson  v.  Bethune,  3  John.  R.  342. 

2  Duffie  V.  Hayes,  15  John.  R.  337. 

3  Kleine  v.  Catara,  2  Gallis.  R.  61. 


OF   EARNING   AND   PAYMENT    OF   FREIGHT.      495 

it,  upon  its  arrival  at  a  certain  place,  without  any 
unreasonable  delay,  and  the  master  of  the  vessel  ap- 
plies for  the  cargo  on  a  Sunday,  and  finding  no  per- 
son ready  to  deliver  it,  refuses  to  wait  until  Monday, 
but  goes  to  sea  without  it,  the  ship-owner  is  not  only 
not  entitled  to  the  stipulated  freight,  but,  on  the 
contrary,  is  bound  to  make  compensation  to  the 
shipper  for  any  loss  sustained  in  consequence  of  the 
captain  not  waiting  and  taking  on  board  the  stipu- 
lated cargo. ^ 

>  Dunbar  v.  Buck,  6  Munf.  R.  34.  In  this  case  it  appeared 
that  a  contract  was  made  in  November,  1807,  between  Robert 
Dunbar,  of  Falmouth,  and  David  Henderson,  of  Fredericksburg, 
for  the  sliipping  of  one  thousand  bushels  of  corn  by  Dunbar,  in  a 
vessel  belonging  to  David  Henderson  «fe  Sou,  to  be  carried  to  the 
Island  of  Antigua,  and  there  sold  on  his  behalf.  He  had  the  re- 
quisite quantity  at  home,  and  put  on  board  at  Fredericksburg  six 
hundred  and  seventy-nine  bushels ;  but  having  purchased  about 
five  hundred  bushels  of  a  Mr.  John  Skinker,  whose  plantation, 
called  the  Hopyard,  lay  some  miles  lower  down  the  Rappahannock, 
and  Skinker  having  urgently  pressed  him  to  take  it  away,  he  pro- 
posed to  Henderson  that  the  vessel  should  take  in  the  balance  of 
the  thousand  bushels  at  the  Hopyard,  to  which  the  latter  agreed, 
but  said  he  should  expect  the  vessel  would  meet  un  unrousDuablc 
delay.  To  guard  against  this,  Dunbar,  on  a  Saturday  afternoon, 
furnished  the  captain  with  bags  to  hold  the  corn,  and  expecting 
the  vessel  to  drop  down  the  river  on  Sunday,  and  receive  it  on 
Monday  morning,  sent  his  agent  to  have  it  measured  and  put  on 
board  at  that  time;  but  the  captain,  wlion  he  arrived  at  the  Hop- 
yarJ,  finding  the  overseer  cither  absent,  or  unwillinL;  tn  dclivi  r  tin' 
corn  on  the  Lord's  day,  i)roceeded  (in  his  voyage  without  it.  ^Vlun 
the  captain  returned  with  the  account  of  sales,  a  charge  was  made 
against  Dunbar  for  dead  freight  on  three  hundred  ami  twenty-one 
bushels  of  corn,  as  so  much  not  delivered  by  him  a(;cording  to  con- 
tract, which  charge  he  considered  highly  unroason;ible,  and,  on  the 
contrary,  contended  that  Henderson  ought  to  make  him  compen- 
sation for  the  loss  in  the  sale,  occasioned  by  the  fault  of  his  agent, 


496  THE    LAW    OF    SHIPPING. 

520.  If  a  freighted  ship  becomes  disabled  during 
her  voyage,  the  master  has  his  option  of  two  things: 
either  to  refit  in  a  reasonable  time,  or  to  hire  another 
ship  to  carry  the  goods ;  and  if  he  does  this,  or  if  the 
shipper  will  not  consent  to  it,  he  will  be  entitled  to 
the  whole  freight.  It  seems,  from  the  general  lan- 
guage of  the  authorities,  that  it  is  not  imperative 
upon  the  master  to  tranship  the  cargo,  unless  there 
be  another  vessel  in  the  same  or  a  contiguous  port, 
which  he  is  able  to  hire.  In  a  case  of  necessity,  in- 
stant, unforeseen,  and  unprovided  for,  the  character 
of  agent  and  supercargo  is  forced  upon  the  master, 
and  in  that  capacity  he  is  bound  to  act  for  the  best 
interest  of  all  concerned.  If,  in  the  execution  of 
such  a  trust,  he  procures  another  vessel  to  take  on 
the  cargo,  the  freighter  is  bound  to  pay  the  extra 
freight,  if  any,  for  the  renewed  voyage  in  the  vessel 
procured  by  the  master,  that  is,  the  freight  beyond 
what  would  have  been  earned  under  the  original 
charter-party,  if  the  necessity  of  hiring  another  ves- 
sel had  not  intervened.^ 

530.  Where  the  charter-party  contains  an  express 
stipulation  for  the  payment  of  freight  from  a  certain 
day,  for  a  certain  number  of  months,  and  so  much 

the  captain,  in  not  taking  on  board  the  full  quantity.  Henderson 
insisted  on  retaining  the  dead  freight,  and  refused  to  make  good 
the  loss.  The  Supreme  Court  of  Appeals  held  in  conformity  with 
the  doctrine  of  the  text. 

'  Emerigon,  torn.  i.  429-4.33 ;  The  Gratitudine,  3  Rob.  Ad.  R. 
240 ;  Miller  v.  Fletcher,  1  Doug.  231 ;  Searle  v.  Scovell,  4  John. 
Ch.  221;  Shipton  v.  Thornton,  9  Ad.  k  Ellis.  814;  3  Kent,  212; 
Mumford  v.  Com.  Ins.  Co.,  b  John.  R.  262. 


OF   EARNING    AND    PAYMENT   OF   FREIGHT.      497 

longer  as  the  vessel  sliall  be  employed  by  the  char- 
terer?!, they  are  bound  to  pay  freight  during  the  time 
the  vessel  may  be  undergoing  repairs,  provided  the 
ship  was  sufficient  at  the  outset  of  the  voj'age,  and 
also  that  there  was  no  improper  delay  in  repairing 
her.^ 

531.  If  a  ship  is  chartered  for  a  voyage  at  a  cer- 
tain sum  per  month,  for  so  long  a  time  as  the  char- 
terers may  continue  her  in  their  employ,  they  are 
bound  to  pay  freight  during  the  time  of  detention, 
occasioned  by  a  hostile  seizure,  provided  she  is  after- 
wards released,  and  performs  her  voyage.  The  doc- 
trine applicable  to  a  case  of  this  nature  is,  that  the 
ship-owner  must  be  paid  for  the  whole  time  the  ship 
is  out  of  his  possession  in  virtue  of  the  contract, 
whether  her  voyage  be  long  or  short,  and  by  what- 
ever accident  she  may  be  delayed  ;  provided  the 
delav  does  not  arise  from  his  own  defliult,  and  also 
that  the  voyage  be  finally  completed.^ 

532.  When  A.  takes  a  charter-party  of  a  vessel 
for  a  voyage  to  a  certain  port  and  back,  at  a  certain 
sum  per  month,  payable  three  days  after  her  return, 
the  owners  furnishing  officers,  crew,  and  provisions, 
lie  has  a  riglit  to  load  the  vessel  himself,  or  allow 
others  to  do  it,  under  express  contract  witli  him. 
]>iit  neither  tbc  mnslcr  nor  owners  liave  a  riglit  to 
take  goods  on  board  without  the  charterer's  per- 
mission, or  on  his  belialf      Xor  liave  they  any  right 


'  Ripley  V.  Scaifc,  5  Barn.  &  Ores.  1G7 ;  Ilavclock  v.  Gcddcs, 
10  Knst,  f);')'). 

«  Spafford  V.  Dodge,  li  xMass.  II.  GO. 

82 


498  THE    LAW    OF    SHIPPING. 

to  demand  freight  of  the  sub-shippers.  They  must 
look  to  the  terms  of  the  charter-party,  and  follow 
them.' 

533.  In  a  case  where  the  owners,  by  charter- 
party,  engaged  their  vessel  to  take  a  cargo  to  a 
designated  port,  at  a  specified  freight,  and  it  was 
agreed  by  the  parties  that  twenty  running  days 
should  be  allowed  for  unloading  and  discharging 
the  vessel  after  her  arrival  at  the  port  of  destina- 
tion, and  that,  for  every  additional  day's  detention, 
the  shippers  should  pay  fifty  dollars  demurrage,  it 
was  held  that  the  stipulation  of  payment  for  demur- 
rage did  not  affect  the  contract  for  freight ;  and  if 
the  consignee  failed  to  unload  and  discharge  the 
vessel  within  the  lay  days  allowed,  there  being  no 
impossibility  of  his  doing  so,  and  afterwards,  wliile 
the  vessel  was  detained  on  demurrage,  the  vessel 
and  cargo  were  lost,  without  the  default  of  the 
master  or  mariners,  the  ship-owners  are  entitled  to 
recover  the  freight,  as  well  as  the  demurrage.^ 

534.  If  the  master  of  a  steamer,  by  false  repre- 
sentations, induces  an  agent  of  a  third  person  to 
ship  merchandise  on  his  boat  at  a  certain  freight, 

'  Perkins  v.  Hill,  2  Wood.  &  M.  R.  158.  Sec,  also,  Weston  v. 
Minot,  ?>  Wood.  &  M.  43G,  where  it  was  held  that  freight  con- 
tracted for  in  gross,  for  a  voyage  out  and  in,  cannot  be  apportioned 
and  recovered  for  a  part  of  the  cargo,  or  a  part  of  the  voyage, 
unless,  from  some  expression  in  the  contract,  or  nature  of  the 
voyage,  or  act  of  the  hirer  of  the  vessel,  or  measure  of  the  govern- 
ment, an  apportionment  becomes  feasible  and  just. 

^  Brown  v.  Ilalston,  0  Leigh's  11.  532 ;  Lacombe  v.  Wain,  -l 
Binney,  299. 


OF   EARNING   AND   PAYMENT   OF   FREIGHT.      499 

and  the  bill  of  lading  states  that  the  merchandise 
is  taken  "  with  the  privilege  of  reshipping,"  and  it 
is  reshipped  on  another  boat  and  brought  to  the 
port  of  destination,  the  owner  of  the  merchandise 
cannot  require  its  deliver}^  before  paying  the  freight 
due  to  the  boat  on  which  it  was  so  reshipped,  the 
contract  by  the  master  of  the  second  boat  having 
been  made  in  good  faith,  at  a  reasonable  rate,  with 
a  party  who  held  a  possession  apparently  fair,  under 
a  bill  of  lading  authorizing  a  reshipment.  The  bad 
faith  of  the  master  of  the  first  boat  does  not  operate 
to  deprive  the  owners  of  the  second  boat  of  the 
remuneration  due  for  their  labor.  Not  being  mere 
agents  of  the  first  carrier,  they  have  a  lien  on  the 
goods  for  their  freight.^ 

*  Walker  v.  Cassaway,  4  Louis.  R.  19.  But  see  Robinson  v. 
Baker,  5  Cushing,  11.  137,  where  it  was  held,  that  a  common 
carrier  who  innocently  receives  goods  from  a  wrong-doer,  without 
the  consent  of  the  owner,  express  or  implied,  has  no  lien  upon 
them,  for  their  carriage,  against  such  owner.  See  also  York  v. 
Grenough,  2  Ld.  Hay.  8G6;  King  v.  Richards,  0  Whart.  418; 
Fitch  V.  Newberry,  1  Doug.  (Mich.)  1 ;  Biukirk  v.  Turin,  2  Hall, 
561 ;  Saltus  v.  Everett,  20  Wend.  207,  275.  There  is  a  distinc- 
tion between  the  cases  here  cited  and  the  doctrine  of  the  text.  In 
the  former  case,  the  carrier  receives  the  goods  from  a  wrong-doer  : 
he  receives  them  innocently,  it  is  true,  but  he  might  have  inquired 
into  the  title.  Caveat  emptor  is  the  principle  that  applies  to  him. 
In  the  latter  case,  it  is  the  carrier  who  is  the  wrong-doer.  But 
the  shipper  might  have  informed  himself  of  the  truth  of  the 
carrier's  representations.  Third  parties  arc  not  to  suffer  from  his 
want  of  prudence  or  diligence.  In  Evart  v.  The  Brig  Lowndes, 
5  Louis.  II.  420,  it  was  held,  that  in  an  act  inn  against  a  vessel 
ami  owners  for  the  non-delivery  of  freight,  the  defendants  may, 
under  the  general  issue,  introduce  testimony  to  show  that  the 
identical  goods  claimed  by  the  [ilaintiff  were  shipped  by  another 
person,  who  took  a  bill  of  lading  for  them.     See,  also,  Dcvillcrs  v. 


500  TUE    LA^Y    OF    SHIPPING. 

535.  Cases  may  occur  where  the  question  as  to 
the  liability  of  the  carrier  for  the  loss  of  the  goods, 
or  injury  to  them,  may  depend  very  much  upon  the 
question  whether  he  was  entitled  to  freight.  Thus, 
when  a  steamboat  is  in  the  habit  of  charging  freight 
for  carrying  remittances  of  money,  if  a  package  con- 
taining money  is  handed  to  the  captain,  without  in- 
forming him  of  its  contents,  there  being  no  charge 
for  freight,  the  owners  of  the  vessel  are  not  liable 
for  the  money  in  case  of  its  loss.  The  captain,  in 
such  a  case,  would  be  responsible  merely  as  deposi- 
tary.^ 

53G.  It  is  universally  conceded  that  the  master  of 
a  carrier  ship,  on  his  arrival  at  the  port  of  delivery, 
has  a  right  to  retain  the  goods  until  the  freight  is 
paid  by  the  consignee.  But  when  the  right  to 
detain  is  not  insisted  upon,  and  the  goods  are  de- 
livered to  the  person  authorized  to  receive  them, 
without  the  payment  of  freight,  the  lien  is  gone, 
and  the  law  will  imply  no  agreement  on  the  part 
of  the  person  receiving  them  to  pay  the  freight."^ 
Maritime  liens  differ  essentially  from  liens  recog- 
nised by  the  common  law,  and  distinctively  in  this : 
that  in  cases  where  the  lien  by  the  common  law  is 
lost  by  parting  with  the  possession  of  the  thing,  in 
those  same  cases,  in  the  maritime  law,  it  continues. 
But  the  maritime  law,  equally  with  the  common, 
discountenances    these   secret   encumbrances   upon 

Schooner  John  Bell,  G  Louis.  544,  as  to  liability  of  the  carrier  in 
cases  of  reshipincnt. 

*  Mechanics'  and  Traders'  Bank  v.  Gordon,  5  Louis.  R.  604. 

"-  Scaife  v.  Tobin,  3  B.  &  Adol.  .523. 


OF   EARNING   AND   PAYMENT   OF   FREIGHT.       501 

property  in  all  cases  where  no  public  policy  is  sub- 
served by  sustaining  them,  and  the  rights  of  third 
parties  would  suffer  from  their  continuance.  Hence, 
where  the  master  gives  up  the  goods  to  the  con- 
signee, without  the  payment  of  freight,  he  gives  up, 
at  the  same  time,  his  lien.  It  is  different  from  the 
case  of  a  material-man  consenting  to  the  departure 
of  a  ship  upon  which  he  has  a  lien.  It  is  for  the 
benefit  of  commerce  that  the  vessel  should  not  be 
detained;  and  therefore  the  maritime  law  wisely 
provides  that  the  lien  shall  continue,  notwithstanding 
she  goes  upon  her  vo3'age.  But  no  public  policy  is 
subserved  by  permitting  the  lien  of  the  master  upon 
the  goods  for  his  freight  to  continue  after  he  has 
parted  with  the  possession  of  them.  On  the  con- 
trary, serious  injury  would  be  likely  to  ensue  to  the 
rights  of  third  parties,  if  it  were  sustained. 

537.  The  right  to  retain  the  cargo  for  the  freight 
has  grown  out  of  the  usage  of  trade,  and  does  not 
exist,  nor  can  it  be  enforced,  when  the  parties  have 
expressly  regulated  the  time  and  manner  of  paying 
freight  by  stipulations  in  a  charter-party,  and  espe- 
cially if  tlic  cargo  is  deliverable  before  the  arrival  of 
the  periods  of  payment.  Such  an  agreement,  if 
inconsistent  willi  the  continuance  of  the  lien,  \vill 
be  construed  as  an  express  renunciation  of  the  right 
to   insist    oil    freight  before   (lie   cargo  is  (IcllNorcd.' 

'  Chandler  v.  Bclrlcn,  18  John.  K.  IfiT;  Thnso  v.  "Wcstmnrc,  5 
M.  &  Sohv.  iHOj  Crawshay  v.  Iloriifray,  4  Barn,  k  Aid.  r)0  ; 
Gracio  v.  Palmer,  8  Wheat.  11.  (»().");  lluggle.s  v.  IJiicknor,  I 
Paine,  C.  C.  11.  35H ;  The  Schooner  Volunteer,  1  Sumner's  R. 
550;  Certain  Logs  of  Mahogany,  2  Sumner,  5S9;  The  Schooner 


502  THE    LAW    OF    siiirriNG. 

The  party  must  resort  to  his  action.'  If,  however, 
he  has  been  induced  to  deUver  the  goods  to  the 
consignee  by  a  false  and  fraudulent  promise  of  the 
latter  that  he  would  pay  freight  as  soon  as  they 
were  received,  the  delivery  will  not  amount  to  a 
waiver  of  the  lien,  but  the  carrier  may  disaffirm, 
and  sue  the  consignee  in  replevin.^ 

538.  If  the  master  notifies  the  person  who  re- 
ceives the  goods  that  he  must  take  them,  subject  to 
the  charge  for  freight,  the  person  so  receiving  them 
becomes  liable  therefor.  Or  if,  by  the  terms  of  the 
bill  of  lading,  the  goods  are  to  be  delivered  to  the 
consignee,  or  to  his  order,  on  payment  of  freight, 
the  party  receiving  them,  whether  the  consignee  or 
an  endorsee,  to  whom  the  bill  of  lading  has  been 
transferred  by  the  consignee,  makes  himself  respon- 
sible for  the  payment  of  freight.  The  law  implies  a 
promise  on  his  part  to  pay  the  freight,  such  being 
the  terms  on  which,  by  the  bill  of  lading,  the  goods 
were  to  be  delivered.  The  person  who  accepts  and 
receives  the  property  thereby  makes  himself  a  party 
to  the  contract.  When  the  consignment,  therefore, 
is  to  A.,  or  his  order,  and  A.  endorses  the  bill  of 
lading,  and  orders  a  delivery  to  B.,  to  whom  accord- 
ingly the  goods  are  delivered,  B.  becomes  bound  to 
pay  the  freight,  and  A.  is  discharged.^ 

Cassius,  2  Story's  R.  81 ;  Clarkson  v.  Edes,  4  Cow.  470 ;  Pick- 
man  V.  Woods,  G  Pick.  248 ;  Pinney  v.  Wells,  10  Conn.  104. 
'  Shatzell  v.  Hart,  2  A.  K.  Marsh.  191. 

2  Bigelow  V.  Hcaton,  6  Hill  (N.  Y.),  43. 

3  Merian  v.  Funck,  4  Denio,  110;  Grant  v.  Stone,  1  N.  J.  R. 
292;  Trask  v.  Duval,  4  Wash.  C  C.  R.  184;  Cock  v.  Taylor,  13 


OF   EARNING  AND   PAYMENT   OF   FRl'.IGIIT.       503 

539.  But  whilst  the  hability  of  the  consignee  is 
admitted  where  he  receives  goods  under  a  bill  of 
lading  such  as  we  have  here  described,  it  does  not 
follow  that  the  consignor  is  exempt.  There  is  no 
shifting  of  liability.  The  contract  of  the  consignor 
and  consignee  is  not  considered  to  be  inconsistent 
with  each  other ;  each  is  an  original  contract  upon 
a  sufficient  consideration.'  In  commercial  transac- 
tions, nothing  is  more  common  than  that  there 
should  be  several  persons,  all  of  whom  are  liable 
for  the  same  thing.  And  in  this  country  the  cases 
all  proceed  upon  the  principle  that  the  clause  in  the 
bill  of  lading,  "  He"  (the  consignee)  "  paying  freight," 
is  introduced  for  the  benefit  of  the  carrier,  not  of  the 
consignor.- 

East,  399;  Spcnco  v.  White,  1  Iredell's  R.  23G;  Ilayward  v. 
Middloton,  3  M'Cord,  121 ;  Layng  v.  Stewart,  1  Watts  k  Serg. 
222;  lloberts  v.  Holt,  2  Show.  K.  432;  Douglass  v.  Kemble,  3 
Bing.  383 ;  Brouncker  v.  Scott,  4  Taunt.  11.  1. 

'  Grant  v.  Wood,  1  N.  J.  292;  Barker  v.  Havens,  17  John. 
R.  234;  Domett  V.  Beckford,  5  B.  &  Adol.  521.  But  see  Van 
Zeller  v.  Sanders,  2  Gale  &  Dav.  244. 

a  In  the  case  of  Moorsoin  v.  Kymer,  2  Man.  &  S.  318,  Mr. 
Justice  Bailey  supposed  that  the  consignee  is  liable  only  where 
the  consignor  is  not.  "Where  the  bill  of  lading,"  he  observes, 
"expresses  that  the  goods  are  to  be  delivered  to  the  consignee,  or 
his  assigns,  he  or  they  paying  freight  for  the  same,  if  the  captain 
deliver  the  goods  to  the  assigns  without  procuring  the  freight  for 
then),  I  am  not  prepared  to  say  that  he  can  resort  back  to  A.  B., 
the  shipper,  where  A.  H.  has  never  expressly  stipulated  tliat  he 
will  pay  th(!  freight."  In  the  case  of  Drew  v.  Bird,  1  Moody  & 
M.  15(5,  Lord  Tcntordcn  ruled,  at  Nisi  I'rius,  in  accordance  with 
the  opinion  of  Justice  Bailey.  In  that  case  there  was  no  charter- 
party.  The  bills  of  lading  stated  the  goods  to  be  "  shipped  by 
A.  Bird"  (the  defendant),  "by  the  ship  Meih.ra,  for  London,  to 
be  delivered  to  E.  Grinitlhs,  for  The  Imperial   Distillery,  or  to  his 


504  THE    LAW    OF    SIIirPING. 

510.  ]^)ut  if  the  goods  iire  not  owned  by  the  con- 
signor, and  lire  not  shipped  on  his  acconnt,  and  for 
his  benefit,  in  that  case,  it  was  said  in  Barker  v. 
Havens,*  the  carrier  is  not  entitled  to  call  on  him  for 
freight.  And,  on  the  other  hand,  if  the  consignee  is 
only  the  agent  of  the  consignor,  and  is  known  to  the 
master  to  be  acting  in  that  capacity,  he  does  not 
make  himself  debtor  for  the  freight  by  accepting  the 
consignment,  or  entering  the  goods  in  his  own  name 
at  the  custom-house.^ 

541.  The  master  has  a  lien  upon  the  freight  for 
all  the  advances  which  he  may  make  on  account  of 
the  ship,  and  can  intercept  it,  when  earned,  to  reim- 

assigns,  he  or  they  paying  freight  for  the  same."  The  goods  were 
conveyed  to  London,  and  delivered  to  Griffiths  without  receiving 
freight.  Afterwards,  and  after  several  ineffectual  applications  to 
Griffiths  and  to  the  Company  for  payment,  the  plaintiffs  applied  to 
the  defendant  by  letter,  and  received  an  answer  that  ''if  Griffiths 
did  not  pay,  he,  the  defendant,  would."  On  this  state  of  facts, 
Lord  Tenterden,  in  summing  up  to  the  jury,  said  :  "  Independently 
of  the  letter  of  the  defendant,  I  think  there  is  nothing  to  entitle 
the  plaintiffs  to  a  verdict.  The  bill  of  lading  directs  them  to 
deliver  to  Griffiths,  he  paying  freight ;  they  deliver  them  without 
receiving  it.  Tlunj  cannot  therehi/  maJce  Jiird  liable  to  them,  if  he 
were  not  so  oriyinalli/  ;  and  on  the  face  of  the  bills  of  lading  nothinrj 
appears  to  charge  him."  But  the  authority  of  Drew  v.  Bird  was 
overruled  by  the  subsequent  case  of  Domett  v.  Beckford,  2  Nev. 
k  M.  374,  where  it  was  held  that  the  consignor  is  liable  for  freight, 
although  by  the  bill  of  lading  the  goods  are  to  be  delivered  to  the 
consignee,  he  paying  freight  for  the  same,  and  they  are  delivered 
to  the  consignee  without  payment  being  required.  See  also  Shep- 
herd v.  De  Bernalcs,  13  I'^ust,  5G5,  and  also  the  observations  of 
Mr.  Sergeant  Shce,  in  Abbott  on  Shipping,  p.  511,  note. 

'  17  John.  II.  234;  3  Kent,  221,  note. 

2  Ward  V.  Felton,  1  East,  507. 


OF   EARNING    AXD   PAYMENT   OF   FREIGHT.      505 

burse  himself.^  Whether  he  has  such  lien  for  his 
wages,  is  a  controverted  point  in  our  jurisprudence. 
Whenever  the  question  has  been  presented  for  judg- 
ment in  the  Courts  of  Connnon  Law,  it  has  been 
ruled  that  such  lien  does  not  exist.^ 

542.  But  it  was  held  by  Judge  Ware,  in  the  case 
of  Drinkwater  v.  The  Freight  and  Cargo  of  the  Brig 
Spartan/  that  the  master's  lien  for  his  wages  rests 
on  as  good  ground  as  for  his  liabilities  or  disburse- 
ments. "  The  money,"  he  said,  "  is  as  much  due  to 
him  in  the  one  case  as  the  other,  and  the  credit  has  in 
each  grown  out  of  the  same  service,  a  service  which 
has  contributed  to  create  the  fund  against  which  his 
claim  is  made.     I  can  see  no  sufficient  reason  for 

'  The  Ship  Packet,  3  Mason's  R.  255  ;  The  Brig  Spartan,  Ware's 
R.  IGO;  Hodgson  v.  Ikitts,  3  Cranch,  140;  Lane  v.  Pcnniman, 
4  Mass.  R.  91.     See  ante,  Chap.  13. 

'Lewis  V.  Hancock,  11  ^lass.  72;  Ingersoll  v.  Van  liokkclin, 
7  Cowen,  G70;  S.  C,  5  Wend.  314.  It  was  said  in  the  kttcr 
case,  that  the  agreement  for  wages  is  a  personal  contract  with  the 
owner,  and  that  there  was  no  substantial  grounds  of  e(iuity  for 
giving  liiin  a  preference  over  other  creditors.  Any  one,  said  tlie 
Chancellor,  in  giving  his  npininn,  who  is  sufTu-icntly  iiitolliircnt 
and  discreet  to  discharge  the  responsible  duties  of  master,  must  be 
perfectly  competent  to  provide  for  his  own  wages  in  the  contract. 
On  the  oIIkt  hand,  tiie  reasons  which  render  it  proper  for  the  mas- 
ter to  hypothecate  the  ship  and  freight  to  procure  the  necessary 
supplies  occasioned  by  goiuc  unforeseen  disaster  in  a  iurcign  i)iiit, 
and  whicli,  by  the  maritime  law,  give  a  lien  upon  IidiIi,  tn  persons 
who  have  furni-xhed  those  supplies,  or  whose  property  was  taken 
for  the  purpose,  in  tlic  nature  of  a  forced  loan,  seem  to  be  e(|ually 
applicable  to  the  case  of  the  master  where  the  rcfpiisite  supplies 
have  been  furnished  from  his  own  properly,  or  on  the  pleilge  of 
his  individual  credit. 

'  Ware's  R.  103. 


50G  THE    LAW    OF    SHIPPING. 

making  a  distinction  between  them.  His  wages  are 
as  mucli  a  charge  on  the  earnings  of  the  ship  as 
those  of  the  seamen,  or  as  the  advances  which  he 
makes  for  incidental  expenses.  What  remains,  after 
these  are  discharged,  constitute  tlie  net  freight  of  the 
owners.  Besides,  if  the  reason  given  for  exchiding 
the  master  from  Admiralty  process  against  the  ship, 
that  he  has  a  lien  on  the  ship,  means  anything,  it 
means  that  he  is  a  privileged  creditor  against  the 
freight.  A  lien  ex  vi  termini  imports  a  privilege.  If 
it  is  not  this,  it  is  nothing.  Upon  the  whole,  find- 
ing that  he  has  a  lien  on  the  freight  for  his  disburse- 
ments, and  seeing  no  reason  in  law  or  justice  for 
making  a  distinction  between  this  claim  and  that  for 
wages,  I  do  not  feel  the  authority  for  introducing  a 
distinction  asrainst  him  which  I  do  not  fnid  esta- 
blished."  If  this  doctrine  is  founded  upon  the  cor- 
rect principle,  it  follows  that  the  master  has  a  right, 
as  against  his  owners,  to  receive  the  freight,  and  that 
payment  of  it  to  the  owners,  on  their  demand,  will 
not  be  a  discharge  against  a  claim  by  the  master. 

543.  In  a  case  where  a  consignee,  known  as  such 
to  the  master,  sells  the  goods  before  they  are  landed, 
and  the  buyer  receives  them,  and  enters  them  in  his 
own  name  at  the  custom-house,  the  buyer  becomes 
liable  for  the  freight.  Although  there  be  no  original 
priority  of  contract  between  the  purchasers  from 
consignees  and  the  owner,  yet  the  taking  of  goods  by 
purchasers  under  a  bill  of  lading,  is  evidence  of  a 
new  agreement  by  them,  as  the  ultimate  appointees 
of  the  shippers,  to  pay  the  freight  for  the  carriage  of 
the  goods,  the  delivery  being  stipulated  with  the 


OF    EARXIXG   AND   PAYMENT   OF    FREIGHT.      507 

shippers  to  be  made  to  the  consignees  named  in  the 
bill  of  lading  or  their  assigns,  he  or  they  paying  the 
freio'ht  for  the  sanie.^  It  seems  obvious  that  the 
assignee  of  a  bill  of  lading,  avIio  receives  the  property 
mentioned  in  it,  is  liable  to  the  owner  of  the  ship  for 
the  freight. 

544.  If,  however,  the  assignor  is  bound  by  charter- 
party  to  pay  it,  or  if  the  person  who  is  sought  to  be 
charged  with  the  freight  promised  to  pay  it,  not  ab- 
solutely as  owner,  but  conditionallj',  if  the  assignor 
did  not,  and  as  surety  for  him,  and  received  the 
goods  not  as  the  assignee  of  the  bills  of  lading,  but 
as  agent  and  surety  of  the  supposed  owner,  in 
neither  of  these  cases  does  the  law  raise  an  implied 
promise,  on  the  part  of  the  receiver  of  the  goods,  to 
pay  the  freight.^  But  even  here  if  the  master  should 
claim  freight  of  the  receiver  of  the  goods,  Ijefore  they 
were  delivered,  and  deliver  them  sul)ject  to  the 
charge,  there  would  arise  an  auxiliary  original  con- 
tract between  the  receiver  and  the  ship-owner  for 
the  freight.  And  more  especially  would  this  be  the 
case,  if  the  master  refused  to  deliver  the  goods  with- 
out an  express  promise  from  the  consignee  or  as- 
signee of  the  bill  of  lading  to  pay  the  freight.^ 

510.  Wlien  the  goods  jjccome  so  much  deteriorated 
during  the  voyage  as  not  to  he  worth  tlie  IVcight,  it 
is  an  important  question  whether  the  merchant  is 

'  AMmtt  on  Phipp.,  f)!!  ;  Cock  v.  Taylor,  1.3  East,  '.IW.  Soc 
also  (;f)lliii.s  V.  rnioii  Trans.  Co.,  10  Watt.s,  .'58  I. 

«  Mnorsom  v.  Kyiiicr,  li  .M.  tt  S.  JJOn ;  Tn.slc  v.  Duvall,  1  Wm^Ii. 
C.  C.  K.  ISl. 

'  Abbott  on  Sliijip.,  \>.  ;')]:;,  nulc  by  the  Kiiglish  cditcr. 


508  THE    LAW    OF    SHIPPING. 

bound  to  receive  them,  or  is  at  liberty  to  abandon 
them  to  tlie  master  in  discharu'o  of  IVeinht.  The 
l)oint  has  been  directly  adjudicated  in  this  country. 
It  arose  in  the  case  of  Griswold  v.  The  New  York 
Ins.  Co.,'  and  it  was  held  that  the  owner  had  no 
right  to  abandon  the  deteriorated  goods  in  discharge 
of  the  freight.  The  consideration  for  the  freight  is 
the  carriage  of  the  article  shipped  on  board,  and  the 
state  or  condition  of  the  article  at  the  end  of  the 
voyage  has  nothing  to  do  with  the  obligation  of  the 
contract.  It  requires  a  special  agreement  to  limit 
the  remedy  of  the  carrier  for  his  lien  to  the  goods 
conveyed.  It  cannot  be  deduced  from  the  nature  of 
the  undertaking.  The  ship-owner  performs  his  en- 
gagement when  he  carries  and  delivers  the  goods. 
The  condition  which  was  to  precede  payment  is  then 
fulfdled.  The  right  to  payment  then  becomes  abso- 
lute, and  whether  we  consider  the  spirit  of  this  par- 
ticular contract,  or  compare  it  with  the  common  law 
doctrine  of  carrying  for  hire,  no  principle  can  be 
discovered  which  makes  the  carrier  an  insurer  of  the 
goods  as  to  their  soundness,  any  more  than  he  is  of 
the  price  in  the  market  to  which  they  arc  carried. 
If  he  has  conducted  himself  with  fidelity  and  vigi- 
lance in  the  course  of  the  voyage,  he  has  no  concern 
witli  the  diminution  of  their  value.  It  may  impair 
the  remedy  which  his  lien  afforded,  but  it  cannot 
affect  his  personal  demand  against  the  shipper.  If 
the  deterioration  has  arisen  from  the  negligence, 
carelessness,  or  improper  conduct  of  the  master  or 
crew,  the  damage  will  be  deducted  from  the  freight.^ 

'  3  Johns.  R.  321 ;  1  John.  R.  205. 

-  Edwards  v.  Todd,  1  Scuinmon's  R.  408;  Leech  v.  Baldwin,  .5 


OF   EAKNIXG   AND    PAYMENT   OF   FKEIGHT.       509 

54 G.  But  if  the  deterioration  has  arisen  from  an 
intrinsic  principle  of  decay  naturally  inherent  in  the 
goods  themselves,  whether  active  in  every  situation, 
or  only  in  the  confinement  and  closeness  of  a  ship, 
the  merchant  must  bear  the  loss  as  well  as  pay  the 
freight.'  No  freight  is  due  for  goods  which  perish 
during  the  course  of  the  voyage  from  perils  of  the 
sea.  This  is  the  doctrine  of  the  maritime  law,  and 
the  decision  of  the  Court  in  the  case  of  Frith  v. 
Barker  is  in  conformity  with  it. 

547.  In  that  case  it  appeared  that  fifty  hogsheads 
of  sugar  were  shipped  on  freight.     They  were  pro- 


Watts,  R.  446 ;  IJumplirey  v.  Reed,  G  Whart.  R.  435.  In  Glover 
V.  Dufour,  G  Louis.  R.  400,  it  was  held,  that  where  casks  of  wine 
had  been  so  badly  stowed,  that  in  a  gale  of  wind  of  no  great  vio- 
lence, they  were  turned  with  the  bungs  down,  so  as  to  cause  loak- 
aire  throuizh  the  vent-holes  left  fur  the  fermentation  of  the  wine, 
the  vessel  was  not  entitled  to  freight.  In  the  case  of  Knox  v.  The 
Ninetta,  Crabbe's  R.  534,  where  the  goods  were  accepted  by  the 
consignee,  and  in  a  damaged  condition,  it  was  contended  that  the 
carrier  was  thereby  discharged  from  liability.  "  This,  I  think," 
observed  Randall,  J.,  "  is  confdunding  the  liability  of  the  party  to 
pay  freight  with  the  liability  of  the  vessel  for  damage.  It  is  true, 
that  if  a  con.signce  accepts  goods  which  arrive  in  a  damaged  state 
be  in  bound  to  pay  freight,  and  in  l-iiigland  he  could  not  plead  the 
damage  by  way  of  set-off,  but  was  put  to  his  separate  act  inn  to  re- 
cover it.  Ilnw  far  this  circuity  of  action  wouM  be  ( iicnuraLicd  in 
this  country  it  i.s  unnecessary  now  in  (lilcrminc,  as  this  is  a  IiIh  I 
for  the  very  damage  Hustained,  but  this  disposes  of  one  of  tlie 
points  made  by  the  proctor  for  the  libellant:  that  the  freight  was 
forfuitcd  by  the  conduct  of  the  master.  I  do  not  think  sn.  Tiie 
liliellant  seeks  to  recover  what  he  would  liave  obtained  had  (lie 
wheat  been  delivered  in  a  sound  state,  and  must  therefore  pay 
what  lie  would  have  been  nbligcd  to  pay  had  it  been  so  delivered." 
'  Abbott  on  Shipp.,  517.  «  2  John.  U.  327. 


510  THE    LAW    OF    SHIPPING. 

perly  stowcil,  but  during  the  course  of  the  voyage 
the  ship  leaked,  owing  to  tempestuous  weather,  by 
means  of  which  the  sugar  was  washed  out,  and  upon 
the  arrival  of  the  vessel  at  the  port  of  destination, 
the  hogsheads  were  empty,  and  some  of  them  fell  to 
pieces.  It  was  held  that  no  freight  was  due.  The 
sugar  was  as  effectually  destroyed  as  if  it  had  at 
once  been  swept  into  the  sea,  and  gone  to  the  Ijot- 
tom.  Bringing  into  port  the  empty  hogsheads  was 
not  bringing  the  hogsheads  of  sugar,  which  the  car- 
rier had  undertaken  to  do.^  The  authorities  all 
concur  upon  the  point  that  no  freight  is  due  for 
casks  leaked  out  by  perils  of  the  sea,  as  the  subject- 
matter  of  the  contract  no  longer  exists.  But,  if  the 
commodity  is  lost  by  other  causes  than  the  perils  of 
the  sea,  such  as  internal  decay,  leakage,  evaporation, 
and  the  like,  the  freight  is  due  nevertheless.^ 

548.  In  a  case  where  the  master  has  been  under 
the  necessity  of  selling  part  of  the  cargo  to  defray 
the  expenses  of  the  ship  in  a  foreign  port,  the  owners 
of  the  cargo,  if  they  have  been  the  authors  of  the 
delay  by  'which  the  expenses  were  occasioned,  are 
bound  to  pay  full  freight  upon  all  the  goods.  This 
doctrine  proceeds  entirely  upon  the  assumption  that 
the  owner  of  the  cargo  is  i)i  delicto,  and  that  the 
sale  resulted  from  his  fault.^  If  a  part  of  the  cargo 
is  sold,  from  necessity,  to  obtain  provisions  or  repairs, 
in  that  case,  inasmuch  as  the  owners  are  bound  to 
pay  to  the  merchant   the  price  which  the  goods 

'  See  also  Pothier,  Charte-Partie,  No.  60. 

2  2  John.  K.  327. 

3  The  Angerona,  1  Dod.  Adm.  R.  382. 


OF    EAKXIXG   AND   PAYMENT   OF   FREIGHT.       511 

Avoiild  have  brought  at  the  port  of  destination,  they 
are  justly  entitled  to  charge  him  with  the  freight 
that  would  have  been  due,  had  the  goods  been  con- 
veyed thither.  So,  too,  if  part  of  the  cargo  is 
thrown  overboard  for  the  necessary  preservation  of 
the  ship  and  the  remainder  of  the  goods,  and  by 
that  means  the  ship  is  preserved,  and  performs  the 
voyage,  the  value  of  the  part  sacrificed  is  to  be 
answered  to  the  merchant  by  way  of  general  ave- 
rage, and  the  value  of  the  freight  thereof  to  the 
owner.  ^ 

549.  If  the  goods  are  captured  on  the  voyage, 
then  recaptured,  and  restored  upon  payment  of 
salvage,  freight  is  to  be  paid  in  proportion  to  the 
voyage  performed  and  the  property  saved,  after 
deducting  the  salvage.  The  salvage  is  a  loss  to 
which,  by  law,  vessel,  freight,  and  cargo,  are  liable 
to  contribute,  and  therefore  diminishes  freight  pro 
tanto.^ 

550.  Where  the  ship  is  chartered  for  a  specific 
sura,  for  the  voyage,  the  contract,  as  before  ob- 
served, is  an  entire  one;  and  the  general  rule  is, 
that,  unless  it  ho  entirely  performed,  by  a  delivery 
of  the  goods  at  the  port  ol"  destination,  no  freight  is 
due.  Consecjuently,  if  \yAYi  ol"  llu'  cargo  is  lost  by 
perils  of  tlie  sea,  and  part  conveyed  to  the  place  of 
destination,  tliere  can  l^e  no  apportionment  of  the 
freight,  under  the  charter-party.     That  is  to  say,  if 


'  Abbott  on  Shipping,  p.  514. 

'■'  Pinto  V.  Atwatcr,  1  Day's  K.  103. 


0l2  THE    LAW    OF    SHIPPING. 

the  ship-owner  seeks  to  recover  upon  the  charter- 
party,  he  is  hound  hy  its  terms,  and  therefore  pre- 
chided  from  obtaining  freight,  because  he  has  not 
full}-  performed  the  conditions  of  his  contract.  It 
is  presumed,  however,  that  a  Court  of  law  woukl 
sustain  a  special  action  on  the  case  (a  part  of  the 
cargo  being  carried  to  the  port  of  destination,  and 
there  accepted),  founded  on  the  implied  assumpsit, 
arising  from  the  acceptance  of  the  goods,  unless, 
indeed,  it  should  appear,  from  the  particular  words 
of  the  charter-party,  that  the  parties  intended  to 
make  the  freigiit  absolutely  dependent  upon  the 
delivery  of  the  whole  cargo/  In  the  case  of  a 
general  ship,  or  one  chartered  for  freight,  to  be 
paid  according  to  the  quantity  of  goods,  freight  is 
due  for  what  the  ship  delivers.^ 

551.  Where,  before  abandoning  a  vessel  from 
necessity,  the  seamen  take  out  a  portion  of  the 
goods  into  the  boat,  and  are  afterwards  taken  up  at 
sea,  and  carried  into  port  by  salvors,  it  is  held  that 
no  freight  is  due  on  the  goods  so  saved ;  and  for  the 
very  valid  reason  that  no  part  of  the  cargo  is  deli- 
vered by  the  ship.  The  salvors,  and  not  the  ship- 
owner, are  the  deliverers  of  the  goods  saved.  There 
is,  in  such  a  case,  no  part  performance  by  the  ship- 
owner, and  no  dispensation  of  performance  by  the 
owner  of  the  goods.' 

•  Post  V.  Robertson,  1  John.  R.  24. 

2  Ritchie  V.  Atkinson,  10  East,  29.5;  3  Kent's  Com.  227.  See 
also  Weston  v.  Minot,  3  W.  &  M.  43G,  as  to  apportionment  of 
freigiit. 

3  Dunnett  v.  Tomhagen,  3  John.  R.  1.54. 


OF    EARXIXG    AND    PAYMENT    OF    FREIGHT.       513 

552.  We  have  elsewhere  seen  that  where  a  ship 
is  forced  into  a  port  short  of  her  destination,  and  in 
her  present  condition  cannot  finish  the  voj-age,  the 
master  must  repair  in  a  reasonable  time,  or  proceed 
in  another  ship.  If,  however,  the  owner  of  the  cargo 
will  not  wait  for  the  repair,  nor  consent  to  the  tran- 
shipment, the  master  will  be  entitled  to  the  wdiole 
freight.  He  stands  ready  to  fulfil  his  contract,  but 
is  prevented  by  the  shipper.  If,  on  the  other  hand, 
the  master  refuses  to  go  on  with  the  voyage,  his 
claim  for  freight  is  gone;  he  has  not  fulfilled  his 
contract.  But  if  the  shipper  voluntarily  accepts 
the  cargo  at  the  port  of  distress,  or  at  an  inter- 
mediate port,  freight  is  due  in  proportion  to  the 
voyage  performed,  jyro  rata  itineris  peracii} 

553.  What  will  amount  to  a  voluntary  acceptance, 
is  a  question  of  fact,  to  be  determined  by  the  circum- 
stances of  each  case.  It  cannot,  however,  be  in- 
ferred from  the  circumstance  that  the  shipper  con- 
sented to  receive  the  proceeds,  in  a  case  where  the 
goods  were  sold,  without  his  authority,  at  an  inter- 
mediate port.  This  amounts  only  to  a  ratification 
of  the  sale  of  the  goods,  and  a  consent  to  receive  the 
money  in  lieu  of  the  claim  for  the  goods  and  a  non- 
performance of  tlie  contract.  Thus,  Avhen  a  vessel 
was  captured  and  coiidciniicd  as  prize  of  war,  but 
tlie  cargo  was  given  up,  and  delivered  into  the 
hands  of  a  [)assenger,  who,  witliout  any  autlio- 
rity  from  the  shipper,  sold  it,  and  remitted  to  him 

'  Abbott  on  tShipping,  p.  52'),  note,  ami  autliorilios  there  cited; 

:5  Kent's  Com.  228. 

88 


514  THE     LAW    OF     RITirriNG. 

the  proceeds,  the  fact  that  he  received  them  did  not 
operate  to  make  him  liable  for  Ireight  pro  rata.' 

554.  In  cases  where  p?-o  rata  freight  is  due,  it  is 
a  question  of  importance  upon  what  basis  it  shall  be 
computed.  In  Luke  v.  Lyde,''  the  rule  of  apportion- 
ment adopted  was  to  calculate  how  much  of  the 
voyage  had  been  performed  when  the  disaster  hap- 
pened. In  the  case  of  Marine  Ins.  Co.  v.  Lennox, 
decided,  in  1801,  by  the  Court  Ibr  the  Correction  of 
Errors,  in  New  York,  the  rule  adopted  was  to  ascer- 
tain how  much  of  the  voyage  had  been  performed, 
not  when  the  ship  first  encountered  the  peril,  and 
was  interrupted  in  her  course,  but  when  the  goods 
had  arrived  at  the  intermediate  port,  because  that  is 
the  extent  of  the  voj-age  performed,  as  it  respects 
the  interest  of  the  shipper. 

«  Escopiniche  v.  Stewart,  2  Conn.  391.  Judge  Story,  in  his 
edition  of  Abbott  on  Shipping,  p.  549  (5th  ed.),  gives  a  summary 
of  the  American  authorities  upon  the  subject  of  pro  rata  freight, 
which  deserves  attention.  ''A  voluntary  acceptance,"  he  says, 
"may,  in  some  of  them,  be  thought  to  mean  no  more  tha.a  an 
acceptance  of  tlic  goods,  or  their  proceeds,  whether  it  has  resulted 
from  choice  in  waiving  any  further  transportation  of  the  goods,  or 
from  that  moral  necessity  which  the  impossibility  of  pursuing  the 
voyage,  or  otherwise  preserving  the  goods,  might  impose  upon 
the  owner  or  his  agents.  If  the  owner  or  his  agents  should  refuse 
to  pay  any  freight  at  the  time  of  receiving  them,  or  should  receive 
them  with  a  protest  against  freight,  or  with  a  denial  of  any  right 
to  claim  it,  or  if  his  agents  should  merely  act,  in  the  absence  of 
the  owner,  for  the  benefit  of  all  concerned,  there  could  arise  no 
implication  of  any  contract  to  pay  freight  resulting  from  the  mere 
acceptance  of  the  goods  or  their  proceeds."  Vide  Welch  v. 
Hicks,  G  Cowen,  504. 

2  2  Burr.  882. 


OF    EARNING   AND   PAYMENT   OF   FREIGHT.       515 

555.  Ill  the  case  of  Robinson  v.  Marine  Ins.  Co.' 
it  was  said  by  Kent,  C.  J.,  that  this  rule  appeared 
to  be  more  just  than  that  in  Luke  v.  Lyde,  but 
owing  to  the  circumstances  of  that  case,  the  latter 
rule  was  followed.  The  rule  adopted  in  Massa- 
chussetts  is,  that  the  ship-owner  shall  receive  his 
whole  freight  for  the  voyage,  deducting  the  amount 
of  the  freight  necessary  for  the  subsequent  transpor- 
tation of  the  goods  to  their  port  of  destination.^ 
This  latter  rule  seems  to  be  just  and  equitable. 
The  freight  is  calculated  upon  the  basis  of  the  bene- 
fit received  by  the  shipper  by  the  transportation  of 
the  goods  to  the  intermediate  port,  with  reference  to 
their  ultimate  destination, 

556.  The  general  principles  of  law,  with  respect 
to  freight,  may  be  controlled  by  the  special  contract 
of  the  parties.  When  their  wishes  and  intentions 
are  fairly  expressed,  they  are  bound  by  them.  If 
particular  terms  are  employed  in  the  charter-party, 
the  rights  of  the  contracting  parties  will  be  governed 
by  the  interpretation  which  the  law  puts  upon  those 
terms.  The  general  rules  that  have  been  adopted  by 
our  Courts,  in  the  construction  of  charter-parties,  are 
in  accordance  witli  the  estaljlished  principles  of 
British  law  adopted  in  the  interpretation  of  similar 
contracts.  When  the  parties,  by  their  agreement, 
make  tlic  outward  ;m<l  liomeward  voyage  one,  and 
the  profit  dependent  u[)om  the  entire  performance, 
no  freiglit  is  due  if  the  return  cargo  is  not  delivered, 
notwithstanding  tlie  sliipper  may  have  had  (lie 
benefit  of  tlie  (Mitward  voyage. 


'  2  John.  R.  323.  *  Coffin  v.  Storcr,  5  Mass.  II.  252. 


516  THE    LAW    OF    SHIPPING. 

557.  Thus,  in  the  case  of  Barker  v.  Cheriot,^  a 
ship  was  chartered  from  New  York  to  Martinico  and 
back  to  New  York,  for  the  entire  sum  of  forty-live 
hundred  dolhirs,  Mhich  was  to  be  paid  in  sixty  days 
after  the  delivery  of  the  return  cargo  at  New  York. 
The  ship  deUvered  her  outward  cargo  at  Martinico, 
and  on  her  return  voyage  with  the  homeward  cargo 
was  captured  and  carried  into  Antigua,  where  the 
cargo  was  libelled  in  the  Prize  Court,  and  detained 
for  further  proof,  subject  to  the  lien  of  freight.  The 
ship  returned  to  New  York  without  the  cargo.  The 
cargo  was  afterwards  appraised  by  the  Prize  Court, 
and  upon  further  proof  was  ordered  to  be  restored  to 
the  claimants ;  but  neither  the  cargo  nor  its  proceeds 
had  ever  come  to  the  hands  of  the  owners  or  their 
agents.  It  was  held  that  under  the  charter-party 
there  could  be  no  recovery  of  freight,  because  the 
voyage  was  an  entire  one,  and  as  the  vessel  was  cap- 
tured upon  her  return,  and  did  not  deliver  her  re- 
turn cargo,  the  contract  was  not  performed.  The 
entire  sum  could  be  claimed  only  in  the  event  of  the 
completion  of  the  entire  voyage.  Pi'o  rata  freight 
was  not  due,  because  there  was  no  acceptance  of  the 
cargo.  The  master  ought  to  have  waited  at  An- 
tigua for  the  removal  of  the  detention  of  the  cargo, 
especially  as  he  would  have  been  entitled,  on  an 
eventual  condemnation,  to  his  freight  from  the  cap- 
tor ;  for  the  Court  of  Vice- Admiralty  admitted  his 
lien  for  freight. 

558.  Where  the  voyage  out  and  home  is  an  entire 
one,  and  freight  contingent  on  its  performance,  the 

'  2  Johns.  R.  352.  vide. 


OF    EARNING    AND    PAYMENT    OF    FREIGHT.       517 

performance  of  the  outward  voyage,  and  the  accep- 
tance of  the  outward  cargo  by  the  freighter,  gives  no 
claim  to  pro  rata  freight,  if  the  return  voj-age  is  not 
performed,  and  this  because  of  the  entirety  of  the 
contract/     If,  however,  on  the  return  voyage,  the 


1  Penoyer  v.  Hallett,  15  John.  R.  332 ;  Hamilton  v.  Warfield, 
2  Gill.  &  John.  482.  In  the  case  of  Brown  v.  Hunt,  11  Mass. 
45,  the  general  principle,  that  if  one  entire  whole  voyage  or  whole 
service  is  stipulated  for  in  the  charter-party,  the  ship-owner  cannot 
sue  on  the  charter-party,  unless  the  whole  voyage  or  whole  service 
is  performed,  was  fully  recognised,  but  the  Court  were  of  opinion 
that  upon  the  terms  and  provisions  of  the  charter-party,  that  was 
a  case  of  separate  and  distinct  voyages,  and  that  the  ship-owner 
was  entitled  to  recover  freight  up  to  the  conclusion  of  a  parti- 
cular passage  of  the  ship.  So,  in  the  subsequent  case  of  Locke  v. 
Swan,  13  Mass.  76,  the  general  principle  was  adopted,  but  the 
Court  thought  that  the  voyage  described  in  the  charter-party  was 
divisible,  and  that  the  freight,  up  to  a  certain  period,  might  be  re- 
covered. So,  too,  in  the  recent  case  of  Towle  v.  Kettell,  5  Cush- 
ing's  It.  18,  the  general  principle  was  recognised,  and  applied  as 
admitted  law.  In  that  case,  it  appeared  that  the  vessel  .sailed 
from  Boston  under  a  charter-party,  executed  on  the  27th  of  June, 
1840,  in  the  usual  form  "for  a  voyage,"  as  described  therein, 
"from  Boston  to  Wilmington,  N.  C,  and  from  thence  to  Cape 
Haytion,  in  the  Island  of  Hayti,  and  frcmi  thence  back  to  Boston," 
the  defendants  engaging  to  pay  the  plaintiff  "  for  the  charter  or 
freight  of  tlie  said  vessel  during  the  voyage  aforesaid,  in  manner 
following,  that  is  to  say,  fifteen  hundred  dollars,  say,  so  much  in 
Hayti  as  the  master  may  want  for  the  di.sburscment  of  the  vessel, 
and  the  balance  on  the  discharge  of  the  cargo  in  Boston,  together 
with  all  port  charges,  lighterage,  and  pilotage  in  llayti,"  and  the 
master  to  have  what  freight  could  be  got  from  Boston  to  Wilming- 
ton. The  voyage  out  was  performed ;  but  the  vessel  was  lost  on 
the  return  voyage.  It  was  held  that  no  freight  was  due.  The 
charter-party  was  construed  to  mean  one  entire  voyage;  it  de- 
clared it  to  be  so  in  terms,  and  nothing  indicated  divided  voyages. 
See  also  Blanchard  v.  Buckram,  3  Greenleaf.  H.  1  ;  Ilavelock  v. 
Geddes,  10  East,  555. 


518  THE     LAW     OF     SHIPPING. 

ship  is  wrecked,  but  the  cargo  is  saved,  and  carried 
on  to  its  port  of  destination  by  the  shipper,  to  wliom 
it  was  deUvered  with  his  assent,  he  must  pay  a  ][>ro 
rata  freight  to  the  place  of  shipwreck.^ 

559.  It  is  proper  to  observe,  that  the  transfer  of 
the  title  to  a  general  ship  transfers  accruing  freight. 
Of  course,  the  moment  there  is  a  delivery  of  the 
cargo,  the  connexion  between  the  ship  and  freight  is 
ended,  and  a  transfer  of  the  ship  thereafter  does  not 
include  the  freight.^ 

'  Coffin  V.  Storer,  5  Mass.  252. 
'  Pelayo  v.  Fox,  9  Barr.  R.  489. 


519 


CHAPTER    VII. 

OF  STOPPAGE  IX  TRANSITU. 

560.  If  goods  arc  consigned  on  credit,  and,  before 
their  delivery,  the  consignee  becomes  bankrupt,  or 
suspends  payment,  the  law  reserves  to  the  consignor 
the  right  to  countermand  their  delivery.'  This  is 
called  stoppage  in  transitu.  The  right  of  stopping 
all  goods  shipped  on  the  credit  and  risk  of  the  con- 
signee remains  until  they  come  into  his  possession 
at  the  termination  of  the  voyage,  unless  he  shall 
have  previously  sold  them  hona  fide,  and  endorsed 
over  the  bills  of  lading  to  the  purchaser.^ 

'  Bidcllocombc  v.  Bond,  4  Ad.  &  Ell.  332 ;  Vcrtuc  v.  Jewell,  1 
Camp.  31  ;  Walter  v.  lloss,  2  Wash.  C.  (!.  R.  283;  Rybcrg  v. 
Sncll,  Ibid.  204,  403 ;  Conyers  v.  Enni.s,  2  Mason,  230.  In  the 
case  of  Rogers  v.  Thomas,  20  Conn.  03,  upon  the  question  of  the 
insolvency  of  the  consignee,  as  involving  the  right  of  stoppage  in 
fransitu,  the  Court  said,  "  Wc  think,  therefore,  that  in  order  to 
authorize  a  stoppage  in  transitu,  there  should  be  some  ostensible 
and  certain  criterion  by  which  tiic  insolvency  of  the  vendee  may 
be  ascertained ;  and  that  it  should  consist  of  some  visible  change 
in  hi.s  pecuniary  situation, — some  open,  notorious  act  on  his  part, 
calculated  to  afTcct  his  credit, — some  change  in  his  apparent  cir- 
cumstances, which  would  operate  as  a  surprise  on  the  vendor,  and 
which  if  he  had  known,  he  wouM  not  have  given  credit  l(»  tlie 
vendee." 

^  Stubbs  v.  Lund,  7  Mass.  4ri3  ;  naldcrstoii  v.  .Maiirn,  2  ('ranch. 
C.  C.  R.  023;  Sawyer  v.  Joslin,  20  Vt.  172. 


520  THE    LAW    OF     SlIirPING. 

5G1.  Lord  Il.irdwicko,  in  tlie  case  of  Snee  v. 
Prescott/  said  that,  even  aCter  the  goods  were  deli- 
vered to  the  principal,  he  could  never  see  any  sul> 
stantial  reason  why  the  original  proprietor,  who 
never  received  a  farthing,  should  be  obliged  to  quit 
all  claim  to  them,  and  come  in  as  a  creditor  only, 
for  a  shilling,  perhaps,  in  the  pound,  unless  the  law 
went  upon  the  general  credit  the  bankrupt  had 
gained  by  having  them  in  his  custody.  But  it  is 
well  settled,  both  in  England  and  this  country,  by 
a  long  and  uninterrupted  course  of  decision,  that 
the  consignor  or  vendor,  in  cases  of  insolvency  or 
stoppage  of  payment,  can  reclaim  the  property  only 
while  it  is  in  its  transit.'^ 

562.  But  if  the  sale  or  consignment  of  the  goods 
was  procured  by  fraud,  the  vendor  or  consignor  may 
reclaim  them  after  they  have  passed  into  the  hands 
of  the  vendee  or  consignee,  or  into  the  hands  of  an 
innocent  purchaser ;  and  this  upon  the  ground  that 
the  vendor  or  consignor  still  retains  the  legal  right 
in  the  goods;  that  the  fraudulent  vendee  or  con- 
signee can  pass  no  title,  because  he  has  acquired 
none;  and,  although  the  purchaser  may  be  wholly 
innocent,  he  is  no  more  so  than  the  original  pro- 
prietor, who  parted  with  the  possession  from  the 
contrivances  of  fraud ;  and  as,  between  two  equally 
innocent  persons,  claiming  either  a  legal  or  equi- 
table right,  his  which  is  prior  in  time  prevails.'' 

'  1  Atk.  11.  245.  See  also  Inglis  v.  Usherwood,  1  East,  515 ; 
3  B.  &  P.  4G9 ;  2  Esp.  R.  014. 

^  Conyers  v.  Ennis,  2  Mason,  236,  and  Abbott  on  Shipp.,  614, 
note  1. 

3  Ash  V.  Putnam,  1  Hill's  R.  302.     Sec  also  Nellis  v.  Bradley, 


OF    STOPPAGE    IN    TRANSITU.  521 

•563.  If,  at  the  time  of  the  consignment,  the  con- 
sio-nee  is  insolvent,  whether  that  fact  be  known  or 
unknown  to  the  consignor,  he  has  no  right  to  inter- 
cept the  goods  in  their  transit.  To  enable  him  to 
do  that,  the  insolvency  must  intervene  between  the 
consignment  and  the  exercise  of  such  right.  If, 
when  he  makes  the  consignment,  he  knows  of  the 
insolvenc}'  of  the  consignee,  the  law  will  not  inter- 
pose to  protect  him  from  the  consequences  of  his  own 
folly.  If  he  does  not  know  of  it,  he  might  have  ac- 
quired the  information,  or  insisted  upon  security,  but 
doing  neither,  he  must  abide  the  result  of  his  indis- 
cretion.' 


1  Sandford's  Sup.  Ct.  R.  560,  and  Rogers  v.  Thomas,  20  Conn. 
53.  In  this  latter  case,  it  was  said  by  the  Court,  tliiit  the  right  of 
reclamation  possessed  hy  the  vendor,  wliorc  the  goods  were  ob- 
tained by  fraud,  may  be  exercised  at  any  time  after  the  vendor  has 
parted  with  the  possession,  and  whether  they  are  in  the  hands  of 
the  vendee  or  of  any  other  person,  cxaptinij  one  to  vhum  thri/  have 
been  transferred  hy  ihc  vendee,  bona  fide,  and  for  a  valuable  consi- 
deration, advanced  or  (jivenon  the  strenr/th  of  them. 

This  conflicts  with  what  was  laid  down  in  Ash  v.  l^itnam,  but 
the  "better  reason,"  we  cannot  but  think,  is  with  that  decision. 

'  Buckley  v.  Furniss,  15  Wend.  VH  ;  Rogers  v.  Thomas,  20 
Conn.  5.3 ;  Smith's  Com.  Law,  547  ;  Oliver's  Law  Sum.,  11(5.  In 
the  case  of  Naylor  v.  Dunnie,  S  I'iek.  IDS,  where  it  was  held,  that 
an  attachment  of  goods  on  board  a  vessel,  as  the  property  of  the 
consignee,  does  not  defeat  the  right  of  the  consignor  to  stop  them  in 
traimitv,  Parker,  C.  J.,  in  ililiviring  the  opinion  of  tlir  Court,  said, 
"  Tliis  right  (stoppage  in  transifn)  is  founded  upon  an  implied  con- 
dition in  the  .sale,  that  if  the  vendee  should  become  insolvent, 
between  the  nhipment  of  the  ijinids,  and  the  reeepflon  if  them  hi/  the 
vendee,  the  vendor  shall  have  the  right  to  rescind  the  eoiilract,  and 
reclaim  the  goods."  On  the  other  hand,  in  the  case  of  Dmiath  v. 
Uroomhead,  7  Barr,  .'Uj:5,  Rogers,  J.,  in  delivering  the  opinion  of 
the  Court,  said,  "That  the  right  of  a  vendor,  on  the  discoirri/  <f 


522  THE     LA  AY    OF     SHIPPING. 

5G4.  The  riiilit  of  stopping  in  transitu  is  adv^erse 
to  that  of  the  consignee,  and  must  be  exercised  ad- 
versely. It  is  not  meant  that  the  right  should  be 
exercised  in  hostility  to  him,  but  simply  that  it  can- 
not be  exercised  under  a  title  derived  from  him.' 
Hence,  where  goods  are  consigned  to  A.  on  his  ac- 
count and  risk,  and  before  their  arrival  he  becomes 
insolvent,  and  assigns  them  to  B.,  who  covenants  to 
receive  and  sell  them  for  the  use  of  the  consignor, 
but  without  his  knowledge,  they  are,  nevertheless, 
liable  to  be  seized  as  the  property  of  the  consignee, 
by  his  creditors.^ 

the  banknqyfci/  or  iuHolccnrij  of  the  party  to  whom  he  has  sold 
goods  on  credit,  to  retake  them  before  actual  or  complete  delivery, 
is  the  well-settled  doctrine  of  both  Courts  of  law  and  equity." 
The  obvious  import  of  this  language  is,  that  upon  the  discovery  of 
the  insolvency  of  the  vendee,  whether  it  occurred  anterior  or  sub- 
sequent to  the  sale,  the  vendor  may  retake  the  goods  if  they  have 
not  yet  come  into  the  possession  of  the  vendee.  The  point  was  not 
involved  in  the  decision  of  the  Court,  and  probably  was  not  defi- 
nitely presented  tu  liis  honor's  mind,  for  he  subsequently  says, 
"  Short  of  this,  the  right  exists,  and  is  much  favored;  for,  as  it  is 
said,  it  is  unreasonable  to  allow  the  goods  of  the  vendor  to  be  ap- 
propriated to  the  payment  of  other  creditors  if  the  vendee  fails 
hcforc  payment,  and  hcfurc  tlir,  <joods  have  actually/  reached  him." 
Here,  it  would  seem  from  the  language  employed,  that  the  right 
of  stoppage  would  depend  upon  the  fact  of  insolvency  occurring 
after  the  sale,  and  before  payment  and  delivery,  and  not  upon  the 
discovery  of  an  insolvency  which  existed  anterior  to  the  sale  and 
shipment.  But,  as  wc  have  already  observed,  the  point  was  not 
presented  for  decision,  and  from  the  language  of  the  Court,  was 
evidently  not  critically  considered,  and  I  am  not  aware  of  any  case 
in  the  Pennsylvania  Reports,  where  the  judgment  of  the  Court  has 
been  invoked  upon  the  precise  question. 

'  15  Wend.  R.  137;  8  Pick.  198. 

^  Lane  v.  Jackson,  5  Mass.  157 ;   Ash  v.  Putnam,   1  Ilill's  R. 


OF     STOPPAGE    IN    TRAXSITU.  52 


o 


5G5.  There  is  no  doubt  that  an  insolvent  con- 
signee may,  before  he  receives  the  goods,  disagree  to 
the  consignment,  and  that  the  assent  of  the  con- 
signor will  be  presumed,  unless  in  a  reasonable  time 
he  declares  his  dissent,  or  neglects  to  give  notice  of 
his  assent.     That  he  mav  avail  himself  of  this  dis- 
agreement,  it  is  the  duty  of  the  consignee  to  give 
reasonable  notice  of  it,  and  equally  the  duty  of  the 
consignor,  within  a  reasonable  time,  to  declare  his 
intention.     For  if  he  remains  silent  after  notice,  his 
assent  will  no  longer  be  presumed.     If  the  goods 
arrive  before  the  consignor  can  have  notice  that  the 
consignee  has  disagreed  to  the  shipment,  any  person, 
at  the  request  of  the  consignee,  may  receive  and  take 
charge  of  them  until  the  consignor  is  notified,  and 
an  intermediate  attachment  will  not  defeat  his  right. 
For  the  insolvent  consignee  having  refused  to  receive 
them,  the  goods  are  in  transitu,  and  may  be  seized 
by  the   consignor  while  they  continue  in  transitu. 
And  on  liis  giving  notice  of  his  arrest,  within  a  rea- 
sonable time,  to  the  disagreement  of  the  consignee, 
the  contract  is  rescinded  ah  initio,  and  nothing  ever 
passed    by  it   to    the   consignee.      But   where   the 
consignee  undertakes,  as  in   the  instance  given,  to 
assign  the  goods,  and  authorizes  a  sale  of  tlieni  lor 
the  use  of  the  consignor,  the  hiw  puts  a  different  con- 
struction upon  the  transaction.     The  assignniont  is 
not  a  disagreement,  but   :m   aflirmancc  of  the  con- 
tract, and  the  law  will   not  i)resume  tliat  the  con- 
signor would  consent  to  the  appointment  of  a  lactor, 
with   power  to  receive  and  sell.     Tlic  :nithority  ol 

(N.  Y.)  302;  FJcholficW  v.  Bell,  14  Mass.  40;  Fciso  v.  Wiay,  '.i 
East.  11.  Uli;  .Siffkcn  v.  Wra}-,  0  East,  :}71. 


524  TIIK     LAAV     or    SHIPPING. 

the  ftictor  is  derived  from  the  consignee,  and  neces- 
sarily supposes  an  interest  in  the  goods.' 

5GG.  The  right  of  stoppage  in  transitu  is  an  ex- 
tension of  the  right  of  lien,  which,  by  the  common 
law,  the  vendor  has  upon  the  goods  for  the  price, 
originally  allowed  in  equity,  and  subsequently 
adopted  as  a  rule  of  law.  The  effect  of  its  exercise 
is  not  to  rescind  the  contract,  or  to  revest  the  general 
property  in  the  vendor,  but  to  reinstate  him  in  his 
lien,  b}'  placing  him  in  the  same  position,  as  if  he 
had  never  parted  with  the  possession.^ 

567.  The  vendor,  if  he  would  repossess  himself 
of  the  goods,  is  bound  to  relieve  them  of  all  charges 


'  L-.ine  V.  Jackson,  5  Mass.  157. 

2  Rowley  v.  Bigelow,  12  Pick.  313 ;  Stanton  v.  Eager,  IG  Pick. 
R.  475;  Newball  v.  Vargas,   15  3Iaine,  320.     Lord  Abiuger,  in 
his  sketch  of  the  progress  of  the  law  with  respect  to  stoppage  in 
transitu,  in  the  case  of  Gibson  v.  Carruthcrs,  8  M.  &  W.,  presumes 
that  the  doctrine  may  be  a  part  of  the  law  of  merchants  which  pre- 
vails generally  on  the  Continent  of  Europe, — the  proof  of  which 
from  time  to  time,  combined  with  its  manifest  justice  and  utility, 
at  length  introduced  it  into  the  common  law  of  England,  of  which 
the  law  merchant,  properly  understood,  has  always  been  reckoned 
to  form  a  part.     lie  says,  tliat  "  In  Courts  of  Equity,  it  has  been 
a  received  opinion  that  it  was  founded  on  some  principle  of  com- 
mon law.     In  Courts  of  Law,  it  is  just  as  much  the  practice  to  call 
it  a  principle  of  equity,  which  the  common  law  has  adopted.     This 
was  strongly  insisted  upon  by  Mr.  Justice  BuUer  in  his  celebrated 
judgment  in  the  House  of  Lords,  in  the  case  of  Lickbarrow  v. 
;Mason.     It  has  also  been  said  by  Lord  Kenyon,  that  it  was  a  prin- 
ciple of  equity  adopted  by  the  common  law  to  answer  the  purposes 
of  justice.     The  most  eminent  equity  lawyers  that  I  have  had 
the  opportunity  of  conversing  with  in  times  that  are  gone  by,  were 
unanimous  in  representing  it  as  the  offspring  of  a  Court  of  Equity." 


OF     STOPPAGE    IN    TRANSITU.  525 

and  burthens  rightfully  and  necessaril}^  accruing 
after  he  parted  with  the  possession  of  them,  and  this 
for  the  obvious  reason,  that  the  vendor  cannot  be 
allowed,  by  his  attempt  to  regain  possession,  to  put 
the  vendee  in  a  worse  position  than  he  would  have 
been  had  the  possession  remained  with  the  vendor. 
And  this  requires  him  to  pay  the  freight  and  inter- 
vening charges.'  But  the  vendor,  to  be  entitled  to 
exercise  his  right  of  stoppage,  is  under  no  obligation 
to  refund  what  he  may  have  received  as  part  pay- 
ment.^ 

5G8.  Since  the  exercise  of  the  right  of  stoppage 
271  transitu  does  not  rescind  the  contract,  it  neces- 
sarily follows  that  the  vendee  or  his  assigns  may, 
notwithstanding,  recover  the  goods,  on  payment  of 
the  price,  and  that  the  vendor,  on  the  other  hand, 
may  sue  for  and  recover  the  price,  provided  he  be 
ready  to  deliver  them  upon  payment.  If  he  has 
been  paid  in  part,  he  may  .stop  the  goods  for  what 
remains  unpaid,  and  the  part  payment  only  has  the 
eflect  to  diminish  the  lien  pro  tanio  on  the  goods 
detained,^ 


I  Ncwhall  V.  Vargas,  15  Mninc,  :]20 ;  Code  Napoleon,  B.  3,  c. 
11,  t.  3,  a.  .070;   1  Wlicat.  K.  212,  note  (/). 

»  Ncwliall  V.  VargaH,  l.'J  Maine,  108. 

»  Hodgson  V.  Loy,  7  T.  11.440;  Kynur  v.  Sowercropp,  1  Camp. 
N.  P.  100;  Ncwhall  v.  Varga.'*,  13  Maine,  lOH.  Upon  the  <|ucs- 
tion,  wliolliir  a  stoppage  in  tnniniln  operates  to  rescind  the  con- 
tract, the  Knglish  (Courts  have  arrived  at  no  authoritative  (h-cision. 
In  the  case  of  Clay  v.  Harrison,  10  IJ.  k  C.  100,  Lord  Tentcrden 
observed  that  it  had  been  argued  mi  the  part  of  the  defendant,  that 
the  effect  of  the  stoppage  in  transitu  was  to  rescind  the  contract, 
and  to  revest  tin-  property  in  the  original  owners;  while,  on  the 


")2C)  THE     LAW    OF     SHIPPING. 

569.  A  foreign  inerohant,  who,  for  a  commission 
to  himself,  purchases  upon  his  own  credit,  and  ships 
upon  the  credit  which  he  gives  to  his  employer,  is  a 
consignor  or  vendor,  entitled  to  exercise  the  right  of 
stoppage  in  transitu}  And  in  every  case,  where  the 
consignor   is    suhstantially   the   vendor,    the    right 

part  of  the  plaintiff,  that  it  only  restored  to  the  owners  a  right  of 
possession,  and  placed  them  in  the  same  situation  as  if  they  had 
not  parted  with  the  goods.  There  docs  not  appear,  he  continued, 
to  be  any  case  in  which  this  point  has  been  expressly  decided. 
But  he  was  of  opinion,  under  the  peculiar  circumstances  of  that 
case,  that  the  bankrupt,  after  the  stoppage  in  transitu,  had  no  pro- 
perty in  the  goods  insured.  In  the  case  of  Wentworth  v.  Outh- 
waite,  10  M.  &  W.  452,  which  occurred  some  years  after,  Baron 
Parke,  in  delivering  the  opinion  of  the  Exchequer  Chamber,  said, 
'*  "What  the  effect  of  stoppage  in  transitu  is,  whether  entirely  to 
rescind  the  contract,  or  only  to  replace  the  vendor  in  the  same  po- 
sition as  if  he  had  not  parted  Avith  the  possession,  and  entitle  him 
to  hold  the  goods  until  the  price  be  paid  down,  is  a  point  not  yet 
decided,  and  there  are  difficulties  attending  each  construction.  If 
the  latter  supposition  be  adopted  (as  most  of  us  are  strongly  in- 
clined to  think  it  ought  to  be,  on  the  weight  of  authority),  the  ven- 
dor is  entitled  to  retain  the  part  actually  stopped  in  transitu  till 
he  is  paid  the  price  of  the  whole,  but  has  no  right  to  retake  that 
which  has  arrived  at  its  journey's  end.  His  right  of  lien  on  the 
part  stopped  is  revested,  but  no  more.  My  Lord  Chief  Baron  has 
expressed  an  opinion,  to  which  he  still  adheres,  that  the  contract 
is  rescinded  by  a  stoppage  in  transitu,  but  he  does  not  think  that 
this  affects  the  right  of  the  vendee  to  retain  that  portion  of  the  goods 
which  have  been  actually  delivered  to  him,  or,  in  other  words, 
have  reached  the  place  of  their  destination,  more  especially  when^ 
the  goods  and  the  price  may  be  apportioned,  as  in  the  present  case, 
and  a  new  contract  be  implied  from  the  actual  delivery  and  reten- 
tion of  a  part.  In  cither  view  of  the  subject,  the  stoppage  of  that 
portion  of  the  goods  conveyed  by  water  affords  no  defence." 

'  Illslcy  V.  Stubbs,  9  Mass.  G5 ;  Fiese  v.  Wray,  3  East,  93 ; 
Newhall  V.  Vargas,  13  Maine,  103. 


OF  STOPPAGE  IX  TKAXSITU.       527 

exists,  and  may  be  exercised.  So,  too,  where  the 
consignor  has  a  divided  interest  in  the  snbject  of  the 
consignment,  as  where  the  goods  are  sent  to  the  con- 
signee to  be  sold  on  joint  account,  in  that  case  he  is 
considered  to  be  in  the  character  of  a  vendor,  and 
therefore  entitled  to  exercise  the  right.^  A  factor, 
who  having  purchased  goods  for  his  principal,  and 
made  himself  liable  to  the  original  vendor,  is  not 
precluded  from  exercising  the  right  of  stoppage  m 
transitu,  from  the  fact  of  his  taking  bills  of  exchange 
on  the  vendee,  drawn  in  his  favor  by  the  master. 
The  bills  are  not  equivalent  to  payment.  They  are 
simply  evidence  of  the  debt  of  the  consignor,  and  do 
not  deprive  him  of  any  other  remedy,  authorized  by 
law,  when  the  vendor  becomes  insolvent.^ 

070.  And  the  right  of  stoppage  is  not  lost,  even 
if  the  consignor  negotiates  the  bills.  As  endorser  of 
the  bills,  he  becomes  conditionally  liable  to  the 
holder,  if  protested  for  non-acceptance,  or  for  non- 
payment, lie  becomes  liable  upon  the  bills  not  for 
the  benefit  of  the  drawer,  but  of  the  holder.  And 
this  liability  does  not  have  the  effect  to  impair  any 
of  his  remedies  against  the  owner,  who  is  bound  to 
accept  and  pay  tliem.^ 

571.  Although  the  geuciiil  dochiiu' of  (he  right  of 
the  consignor  of  goods,  sold  on  credit,  to  .stop  them 
while  in  their  iransiius  to  a  consignor,  who  becomes 


»  Siffkcn  V.  Wray,  0  East's  11.  .'J71;  2  Kent's  Com.,  542. 
"Ncwl.all  V.Vargas,   1.'}   Maine,  10:j;  S.  C,  15  Maine,  814  ; 
Hodgson  V.  Loy,  7  T.  11.  440. 
'  Ibid. 


528  THE     LAW    OF     SHIPPING. 

insolvent,  is  well  established,  and  although  there  is 
little  dilliculty  in  determining  who  may  exorcise  this 
right,  yet  diniculties  often  occur  in  particular  cases, 
in  determining  whether  the  goods,  at  the  time  of  the 
attempted  exercise  of  the  right  of  the  consignor, 
are  in  their  transit,  or  are  to  be  treated  as  having 
arrived  at  their  place  of  destination.  This  arises 
from  the  fact  that  no  two  cases  are  alike  in  all  their 
circumstances,  and  the  consequent  inability  to  lay 
down  any  specific  rule  b}'  which  to  ascertain  the 
termination  of  the  transit. 

572.  Formerly,  it  was  supposed  that  the  right  of 
the  consignor  to  repossess  himself  of  the  goods  con- 
tinued until  the  goods  came  to  the  "  corporal  touch" 
of  the  consignee.  At  a  later  period  the  expression 
was  modified,  and  the  familiar  language  of  the 
Courts  was,  that  the  right  of  stoppage  continued  until 
the  goods  came  into  the  actual  possession  of  the  con- 
signee. It  is  now  the  uniform  language  of  the  cases, 
that  the  transitiis  is  at  an  end  whenever  the  goods, 
in  pursuance  of  the  original  destination  given  to 
them  by  the  consignor,  have  come  into  the  posses- 
sion of  the  consignee,  whether  that  possession  be 
actual  or  constructive} 

573.  But  what  constitutes  such  actual  or  construc- 
tive possession  of  the  consignee,  as  defeats  the  right 
of  the  vendor,  is  to  be  gathered  rather  from  an  ex- 

•  Sawyer  v.  Joselin,  20  Vt.  172 ;  Frazier  v.  Hilliard,  2  Strob. 
R.  309;  Donath  v.  Bronihead,  7  Barr,  301 ;  Fetter  v.  Field,  1  La. 
R.  80 ;  Mottram  v.  Heyer,  b  Dcnio,  R.  529 ;  Hays  v.  Mouille,  2 
Harris,  R.  48 ;  Naylor  v.  Dennie,  8  Pick.  198 ;  Allen  v.  Mercier, 
1  Ash.  103. 


OF    STOPPAGE    IX    TRANSITU.  529 

amination  of  particular  cases,  than  from  any  precise 
definition  which  has  been  given  of  the  terms  them- 
selves. Where  goods  are  attached  on  board  a  vessel, 
as  the  property  of  the  consignee,  this  proceeding 
docs  not  defeat  the  right  of  the  consignor  to  stop 
them  in  transitu,  because  the  transit  is  not  ended  by 
the  arrival  of  the  vessel  in  which  the  goods  are 
shipped,  nor  until  they  are  taken  possession  of  on 
behalf  of  the  consignee.^ 

574.  And  even  where,  upon  the  arrival  of  the 
vessel,  the  consignee  demands  the  goods,  but  the 
master  refuses  to  give  them  up  unless  paid  a  balance 
due  for  former  freights,  and  upon  this  not  being  done, 
retains  the  goods  and  returns  with  them  to  the  port 
of  shipment,  where,  upon  the  vendee  becoming  in- 
solvent, he  attaches  them  as  the  property  of  the 
vendee  for  his  balance ;  in  such  a  case,  it  is  held  that 
the  vendor  has  not  lust  his  right  of  stoppage,  but 
upon  tendering  to  the  master  the  amount  of  freight 
due  upon  the  goods,  is  entitled  to  receive  them.^ 

575.  Where  goods  arc  consigned,  but  the  duties 
not  being  paid,  are  lodged  in  the  government  stores, 
the  consignor  may  stop  them  in  transitu,  if  he  claims 
them  before  they  are  actually  sold  for  the  payment 
of  the  duties;  or  if  sold,  he  is  entitled  to  the  pro- 
ceeds.^ And  the  same  prltifiple  applies  to  a  case 
where,  uj)oii  the  arrival  of  the  goods  at  the  port  of 
destination,  llic  vond(»o  j)nys  freight,  and  gives  hi» 

•  Nnylor  v.  Dcnnic,  8  I'ick.  198. 
«  Allen  V.  Mercer,  1  Ash.  11.  103. 
»  Northcy  v.  Crags,  2  Esp.  G13. 
84 


530  THE    LAW    OF    SHIPPING. 

note  for  the  price,  but  owing  to  the  loss  of  the  in- 
voice the  goods  are  not  entered  at  the  custom-house, 
but  are  stored  there  by  the  oflicers  of  the  customs, 
and  remain  there  until  the  dishonor  of  the  note. 
The  payment  of  freight  does  not  amount  to  a  con- 
structive possession,  so  as  to  put  an  end  to  the  tran- 
situs,  any  more  than  an  actual  payment  of  part  of 
the  price. ^ 

576.  But  where  the  goods  are  landed  upon  the 
wharf,  which  is  the  usual  place  of  the  consignee  re- 
ceiving his  goods,  and  neither  the  wharfinger,  nor 

1  Donath  V.  Broomliead,  7  Barr,  301.     The  question,  in  this 
case,  was,  whether  the  defendants  had  lost  their  right  of  stoppage 
in  transitu.     These  were  the  facts.     In  1836,  one  Tryon  ordered 
certain  hardware  from  Broorahead  &  Thomas,  merchants  in  Eng- 
land, which  arrived  in  Philadelphia  in  the  Octorara,  on  the  15th 
of  April,  1837,  consigned  to  Tryon,  and  accompanied  by  an  in- 
voice and  bill  of  lading.     On  the  18th,  Tryon  paid  the  freight,  and 
on  the  25th  gave  his  note  at  four  months  for  the  invoice,  exchange, 
and  interest,  to  the  agent  of  Broomhcad  &  Thomas,  who  retained 
it  until  maturity,  when  it  was  dishonored.     In  consequence  of  the 
loss  of  the  invoice,  Tryon  was  unable  to  enter  the  goods  at  the 
custom-house,  to  which  they  were  removed  from  the  vessel  by  the 
officers.     On  the  19th  of  May,  Tryon  assigned  for  the  benefit  of 
creditors,  and  Donath,  the  plaintiff,  was  appointed  assignee.     After 
the  dishonor  of  the   note,  the   agent  for  defendants  claimed  the 
goods  on  their  behalf,  and  notice  was   given   to  the  collector. 
Donath,  the  assignee,  also  claimed  the  goods.     On  the  3d  of  July, 
1843,  the  goods  were  sold  by  order  of  the  collector,  and  the  net 
proceeds  paid  into  the  hands  of  G.  S.,  to  abide  the  result  of  this 
Buit.     It  was  held,  that  as  the  goods 4iad  not  been  entered  at  the 
custom-house,  the  consignee  was  not  entitled  to  the  actual  posses- 
sion of  them.     They  were  in  the  possession  of  the  officers  of  the 
law,  the  transitus  was  not  ended,  and  the  consignor  retained  the 
right  to  intercept  them. 


OF     STOPPAGE    IN    TRANSITU.  531 

any  person  for  him,  or  for  the  carriers,  has  any 
charge  of  the  goods,  in  that  case  the}'  ha}'  upon  the 
wharf,  subject  to  the  control  and  direction  of  no 
other  person  than  the  consignee,  and,  therefore,  in 
contemjihition  of  law,  they  are  in  his  possession,  and 
the  transitus  is  ended. ^ 

577.  So,  too,  where  goods  are  placed  in  the  public 
store  under  the  warehousing  system,  either  in  this 
country  or  in  England,  after  a  perfect  entry  of  them  for 
that  purpose,  they  are  to  be  considered  as  having  come 
to  the  possession  of  the  vendee,  at  the  place  where 
he  intends  they  shall  remain  until  he  gives  further 
order  for  their  disposal ;  and  the  law  recognises  his 
right  to  sell  or  dispose  of  them  as  he  pleases,  subject 
only  to  the  custody  of  the  officers  of  the  revenue  for 
the  security  of  the  payment  of  the  duties,  at  the 
time  when  by  law  tliose  duties  become  due  and  pay- 
able.^ 

578.  The  delivery  of  part  of  the  goods,  if  not  in- 
tended as  a  delivery  of  the  whole,  but  is  simply  a 
separation  for  the  purpose  of  that  part  only,  leaves 
all  the  rest  in  skiiu  quo.  But  when  each  part  is 
taken  away  with  the  intention  to  take  possession  of 
the  whole,  not  to  separate  the  part  that  was  delivered 
from  the  remainder,  in  that  case,  it  is  held  to  be  a 
delivery  of  the  whole  cargo,  and  the  iransitufi  is  ter- 
minated.    Ijccause,  if  there  was  no  intention  to  sepa- 

•  Sawyer  v.  Joslin,  20  Vt.  17-2  ;  Frazcr  v.  TTilliard,  2  Slrob.  R. 
309. 

2  Moltraiii  V.  Iloycr,  ')  IVnio's  II.  029;  Straclian  v.  The  Tru.s- 
tec8  of  Knox  &  Co.,  cited  in  Urown  on  Sak'S,  530. 


532  THE     LAW     OF     SHIPPING. 

rate  tlie  particular  part  from  tlic  remainder,  that 
incipient  delivery,  so  to  speak, — that  inchoate  deli- 
very, ^vill  amount  to  a  determination  of  the  right  to 
stop  in  transitu.^ 

579.  In  the  case  of  Betts  v.  Gibbins,'  Taunton,  J., 
observed,  that  "  a  partial  delivery  is  a  delivery  of 
the  whole,  unless  circumstances  show  that  it  is  not 
so  meant."  According  to  this,  the  law  presumes  that 
the  part  delivery  is  intended  as  a  delivery  of  the 
whole.  If  it  were  not,  then  the  actual  intention 
must  be  shown  from  the  circumstances. 

'  Tanner  v.  Scovell,  14  M.  &  W.  27.  In  this  case  goods  were 
forwarded  in  bales  by  ship  to  London,  deliverable  to  B.  &  Co.,  or 
their  assigns,  who  were  factors  for  sale ;  and  were  landed  at  the 
defendant's  wharf.  B.  &  Co.  gave  the  defendants  orders  to  "  weigh 
and  deliver"  the  goods  to  M.,  who  had  contracted  with  B.  &  Co. 
for  the  purchase  of  them.  They  were  accordingly  weighed,  and 
an  account  of  the  weights  sent  to  B.  &  Co.,  who  made  out  invoices 
to  M.  accordingly.  M.  re-sold  several  bales  of  the  goods,  which 
were  delivered  by  the  defendants,  upon  his  order,  to  his  vendees : 
the  rest  remained  on  the  defendant's  wharf  until  they  were  stopped 
by  B.  &  Co.  as  unpaid  vendors.  They  were  never  transferred  in 
the  defendant's  books  from  the  name  of  B.  &  Co.  to  that  of  M., 
nor  was  any  warehouse  rent  paid  by  him  :  held,  first,  that,  upon 
these  facts,  the  defendants  never  stood  in  the  relation  of  wharfingers 
to  M.,  so  as  to  be  liable  to  an  action  on  the  case  by  hira  for  the 
non-delivery  of  the  goods  to  his  order.  Secondly,  that,  under 
these  circumstances,  B.  &  Co.'s  right  of  stoppage  in  transitu  was 
not  determined  by  the  part  delivery  to  M.'s  vendees.  See,  also, 
upon  the  doctrine  stated  in  the  text,  Slubey  v.  Heyvvard,  2  II.  Bl. 
504  ;  Bunney  v.  Poyntz,  4  B.  &  Ad.  571  j  S.  C,  1  Nov.  &  M.  221); 
Jones  v.  Jones,  8  M.  &  W.  4.31 ;  Buckley  v.  Furnes.?,  17  Wendell's 
R.  504;  S.  C,  15  Wend.  R.  im. 

»  2  Ad.  &  Ell.  57 ;  S.  C,  4  Nev.  &  M.  64. 


OF    STOPPAGE    IN    TRANSITU.  533 

580.  This  is  erroneous,  and  was  expressly  declared 
to  be  so,  in  the  case  of  Tanner  v.  Scovell,^  where  it 
was  said  that  "the  whole"  (that  is,  the  question 
whether  a  part-delivery  is  considered  by  the  law  as 
a  delivery  of  the  whole),  "in  truth,  depends  on  the 
intention  of  the  vendee."  If,  as  already  observed, 
the  vendee  takes  possession  of  part,  not  meaning 
thereby  to  take  possession  of  the  whole,  but  to  sepa- 
rate that  part,  and  to  take  possession  of  that  part 
only,  it  puts  an  end  to  the  transitus  only  wdth 
respect  to  that  part,  and  no  more  :  the  right  of  lien 
and  the  right  of  stoppage  in  transitu  on  the  re- 
mainder still  continue. 

581.  If  the  goods  are  delivered  on  board  a  ship 
chartered  by  the  consignee,  to  be  imported  by  him', 
the  right  of  stopping  in  transitu  remains  after  the 
shipment.''  But,  if  the  goods  are  not  to  be  imported 
by  the  consignee,  but  to  be  transported  from  the 
place  of  shipment  to  a  foreign  market,  the  right  of 
stopping  (It  transitu  ceases  on  the  shipment,  the 
transit  being  then  completed;  because  no  other 
actual  possession  of  tlie  goods  by  the  consignee  is 
provided  for  in  the  bills  of  lading,  which  express  the 
terms  of  the  shipment.^ 

582.  The  same  rule  govei-ns,  i("  the  consignee  is 
the  ship-owner.  If  tiie  goods  are  delivered  on  board 
his  ship,  to  ])('  carried  to  him,  an  actual  possession 


■  1  1  M.  .V  W.  27. 

»  liothlingk    V.  Inglis,  15    East's    11.   'Ml ;   Fowler  v.    Kyriicr, 
Ibid.  ?,W). 

«  7  D.  &  K.  442;  Stubbs  v.  T.und,  7  Mass.  4r)7. 


534  THK     LAW    OF     SHIPPING. 

by  him  after  tlie  delivery  is  provided  for  by  the 
terms  of  the  shipment;  but  if  the  goods  are  put  on 
board  his  ship  to  be  transported  to  a  foreign  market, 
he  has  on  the  shipment  all  the  possession  contem- 
plated by  the  bills  of  lading.  In  the  former  case, 
the  transit  continues  until  the  termination  of  the 
voyage ;  but,  in  the  latter  case,  the  transit  ends  on 
the  shipment/ 

'  Stubbs  V.  Lund,  7  Mass.  457.  The  doctrine  of  this  case,  with 
a  solitav}'  exception,  seems  to  have  commanded  the  confidence  of  the 
profession.  It  was  rejected,  however,  in  the  case  of  Bolin  v.  Huff- 
nagle,  1  Ilawle's  R.  1,  the  Court  in  that  case  proceeding  upon  the 
principle  that  the  destination  of  the  goods  was  immaterial,  and  that 
a  delivery  of  them  to  the  master  of  the  consignee's  own  ship  put  an 
end  to  the  tmnsitus.  In  the  case  of  Newhall  v.  Vargas,  13  Maine, 
93,  Weston,  J.,  after  an  examination  of  the  decision  in  the  case  of 
Bothlingk  v.  luglis,  3  East,  381,  thus  refers  to  the  case  of  Bolin 
V.  Huffuagle  :  "  It  is  a  little  remarkable,"  he  observes,  "  that  in 
Bolin  v.  Huffnagle,  the  Supreme  Court  of  Pennsylvania,  although 
their  attention  was  called  to  the  case  last  cited  (Bothlingk  v. 
Inglis),  decided  otherwise;  and  principally  upon  the  authority  of 
the  cases  there  commented  upon,  giving  them  an  effect  and  bearing 
disclaimed  by  the  Court  by  whom  they  were  decided.  The  learned 
Judge  by  whom  the  opinion  of  the  majority  of  the  Court  was 
delivered  goes  into  an  elaborate  consideration  of  a  delivery,  actual 
and  constructive;  and  deduces  tliat  it  is  only  when  the  delivery  is 
constructive  that  the  right  of  stoppage  exists.  A  delivery  on  board 
the  consignee's  or  vendee's  own  ship  he  calls  actual.  But  a  delivery 
to  the  servant  or  agent  of  the  party  is  as  much  actual  as  if  deli- 
vered to  the  party  himself.  And  whether  that  servant  or  agent  is 
specially  deputed  for  the  purpose,  or  some  one  is  deputed,  having 
similar  commissions  to  discharge  for  others, — whether  the  vendee 
employs  his  own  vessel  or  carriage,  or  causes  the  goods  to  be  trans- 
ported, for  an  adequate  compensation,  in  that  of  another, — does 
not  appear  to  us  to  make  any  difference.  The  delivery  is  actual 
in  the  one  case  as  well  as  in  the  otlier.  The  sale  is  complete. 
The  property  is  transferred.     The  right  of  stoppage  is  not  founded 


OF     STOPPAGE    IN    TRANSITU.  535 

583.  The  same  distinction  exists  in  the  case  of  a 
general  ship.  If  a  ship  sail  from  this  country  to 
Great  Britain,  with  the  intention  of  taking  on  board 
goods  for  divers  persons  on  freight,  to  be  transported 
to  a  foreign  market,  as  the  mercantile  adventures  of 
different  shippers, — if  goods  are  so  shipped  by  the 
several  consignors,  there  is  no  transit  to  the  con- 
signees after  the  shipment ;  and  no  right  of  stopping 
remains  with  the  consignors.  But  it  is  otherwise 
when  several  persons  import  goods  in  a  general  ship 
on  their  own  credit  and  risk;  for  a  future  actual 
possession  by  them  is  provided  for  in  the  bills  of 
lading.' 

584.  A  delivery  to  a  warehouseman  or  wharfinger 
at  the  place  of  the  ultimate  destination  of  the  goods, 
who  does  not  receive  them  as  the  mere  agent  of  the 
purchaser,  hut  in  the  ordinary  course  of  his  business 
as  a  middleman,  is  not  a  constructive  delivery  to 
the  purchaser,  so  as  to  put  an  end  to  the  light  of 
stoppage  in  transitu.^ 

585.  In  the  case  of  Edwards  v.  Brewer,  the  goods 
were  sold,  to  be  delivered  at  the  port  of  London. 

upon  any  imperfection  in  the  sale,  nor  docs  it  rescind  the  contract; 
it  only  authorizes  the  vendor  to  take  the  goods,  until  th  ■  juice  is 
]iaid.  Two  out  iif  thf!  five  members  of  the  Court  did  not  concur 
in  the  judgment  cited  from  llawlc.  The  opinion  of  the  dissenting 
Judges  8CCUI8  to  us  to  be  best  supported  by  authority."  See  also, 
to  the  same  effect,  2  Kent,  f)!;');  Rowley  v.  Higclow,  VI  Tick. 
y07,  314. 

'  7  Mass.  4r)8. 

2  ?Mwards  V.  Brewer,  :)  M.  &  W.  375;  Covcll  v.  Hitchcock,  28 
Wend.  l;.  lill. 


536  THE    LA^Y    OF    SHIPPING. 

The  master  of  the  vessel,  on  arriving  at  that  port, 
called  at  the  ofllce  of  the  purchaser,  and  requested 
his  clerk  to  send  for  the  goods,  and  told  him  that,  if 
he  did  not,  lie  should  he  under  the  necessity  of  land- 
ins:  them  at  the  wharf  where  his  vessel  was  then 
lying.  The  clerk  promised  to  send  a  note  to  the 
wharf-ofTice ;  and  he  accordingly  sent  a  note  to  the 
master  of  the  vessel,  saying  that  the  purchaser  was 
from  home,  but  that  he  had  better  land  the  goods  at 
that  wharf,  on  his  account.  He  accordingly  landed 
them,  but  had  it  entered  in  the  wharfinger's  books 
that  the  freight  and  charges  were  to  be  paid  before 
the  delivery  of  the  goods.  Lord  Abinger,  and  the 
other  Judges  of  the  Court  of  Exchequer,  held  that 
the  delivery  of  the  goods  to  the  wharfinger  did  not 
prevent  the  right  of  stoppage  in  transitu,  until  the 
vendee  had  actually  called  and  taken  possession  of 
them ;  that  the  note  of  the  clerk  was  not  a  peremp- 
tory order,  but  only  an  expression  of  opinion ;  and 
that  the  wharf,  although  it  was  the  place  where  the 
vendee  was  to  call  and  receive  the  goods,  was  only 
a  place  of  deposit,  in  transitu. 

586.  The  Court  proceeded  upon  the  same  prin- 
ciple in  the  case  of  Covell  v.  Hitchcock;  that  is, 
that  the  transit  continues  so  long  as  the  goods 
remain  in  the  possession  of  the  middleman,  whether 
he  be  the  carrier  either  by  land  or  by  water,  or  the 
keeper  of  a  warehouse  or  place  of  deposit  connected 
with  the  transmission  and  delivery  of  the  goods.  If 
the  carrier  enters  expressly,  or  by  implication,  into 
a  new  agreement,  distinct  from  the  original  contract 
for  carriage,  to  hold  the  goods  for  the  consignee  as 


OF    STOPPAGE    IN    TRANSITU.  537 


his  agent,  not  for  the  purpose  of  expediting  them  to 
the  place  of  original  destination,  pursuant  to  that 
contract,  but  in  a  new  character,  for  the  purpose  of 
custody  on  his  account,  and  subject  to  some  new 
and  further  order  to  be  given  to  him,  that  consti- 
tutes a  case  of  constructive  possession.^ 

587.  Chancellor  Kent  seems  to  be  of  opinion  that 
the  question  of  constructive  delivery  may,  in  all 
cases,  be  determined  by  this  rule  :  "  If  the  delivery 
to  a  carrier  or  agent  as  the  vendee  l)e  for  the  pur- 
pose of  conveyance  to  tlie  vendee,  the  right  of  stop- 
page continues,  notwithstanding  sucli  a  constructive 
delivery  to  the  vendee ;  but  if  the  goods  be  delivered 
to  the  carrier  or  agent  for  safe  custody,  or  for  dis- 
posal on  the  part  of  the  vendee,  and  the  middleman 
is  by  agreement  converted  into  a  special  agent  for 
the  buyer,  tbe  transit  or  passage  of  the  goods  termi- 
nates, and  with  it  the  right  of  stoppage. 


))2 


588.  If  a  carrier,  after  notice  from  the  vendor  to 
stop  goods,  does  by  mistake  deUver  them  to  tlie 
vendee,  the  right  of  the  vendor  will  not  be  taken 
away,  even  though,  owing  to  the  vendee's  having 
become  bankrupt,  the  goods  may  have  passed  into 
the  hands  of  his  assignees;'  nor  will  the  delivery  by 
the  master  of  the  vessel,  to  the  consignee,  of  the  bill 


'  Wbitelifud  V.  Anderson,  !»  M.  k  W.  5.34.  A  delivery  to  ii 
mercantile  house,  merely  for  transmission  by  a  forwardiiig-iiouso 
to  the  vendee,  docs  not  anjount  to  a  delivery  to  the  venrlee.  '1 
Ilarrin,  48. 

2  2  Kent's  Com.  545. 

*  Abbott  on  Shipping,  p.  020,  and  cases  cited. 


538  THE   LAW   OF   sinrrrNG. 

of  lading  retained  by  the  master  for  his  own  use, 
vest  in  the  consignee  the  legal  right  to  the  property, 
if  he  would  not  otherwise  possess  it.' 

589.  It  was  said  by  Judge  Washington,  in  the 
case  of  Walter  v.  Eoss,  that  the  possession  of  a  bill 
of  lading  to  order,  not  endorsed ;  a  promise  by  the 
shipper  to  endorse  it,  or  to  send  a  bill  of  lading ;  or, 
perhaps,  even  a  letter  of  advice,  stating  the  shipment 
to  be  to  a  particular  person,  might,  as  between  those 
parties,  and  where  the  consideration  is  paid,  give  to 
the  consignee  an  equitable  title,  sufficient  to  repel 
the  right  of  the  consignor  to  countermand,  and  even 
to  defeat  the  legal  right  of  the  holder  of  the  bill  of 
ladins:,  with  notice  of  the  circumstances.  The 
master  would,  in  such  case,  certainly  act  at  his  peril, 
in  delivering  the  cargo  to  such  equitable  claimant; 
but  if  his  title  as  such  could  be  made  out,  it  is  pro- 
bable he  would  incur  no  risk.  Whatever  exceptions 
may  be  sustained,  upon  the  ground  of  equitable  title, 
the  general  doctrine  is,  that  if  the  consignee  of  goods 
makes  a  bill  of  sale  of  them,  before  they  come  to  his 
possession,  and  hefore  lie  has  received  the  bill  of  lading, 
the  consignor  may  stop  them  in  transitu,  or  direct  a 
different  delivery,  and  the  vendee  would  have  no 
title  by  such  sale  against  him.^ 

590.  Goods  are  frequently  sold  while  stored  in  a 
warehouse,  and  nice  questions  have  arisen  as  to  what 

'  Walter  v.  Ross,  2  Wash.  C.  C.  R.  283. 

2  Illslcy  V.  Stubbs,  9  Mass.  R.  67;  Abbott  on  Shipp.,  Story's 
note,  p.  G30. 


OF     STOPPAGE    IN    TRANSITU.  539 

acts  in  such  cases  will  amount  to  a  delivery,  so  as  to 
preclude  the  vendor  from  resuming  possession  of 
them  upon  the  intervening  insolvency  of  the  vendee. 
It  is  admitted  that  if  the  vendor  gives  the  vendee  an 
order  upon  the  warehouseman  for  the  goods,  and  if 
the  vendee  has  handed  the  order  to  the  warehouse- 
man, and  he  has  made  the  usual  entry  in  the  books 
changing  the  name  of  the  proprietors,  the  right  to 
stop  them  bi  transitu  is  gone,  and  the  warehouse- 
man is  bound  to  hold  them  as  the  agent  of  the  pur- 
chaser,' and  the  same  result  follows,  if  the  buyer 
delivers  the  order  to  the  warehouseman,  without 
any  actual  transfer  being  made  in  his  books.^ 

501.  If,  after  goods  are  sold,  they  remain  in  the 
warehouse  of  the  vendor,  and  he  receives  ware- 
house rent  for  them,  this  amounts  to  a  complete 
transfer  of  the  goods  to  the  purchaser.''  And  if  it  is 
a  part  of  the  consideration  of  the  purchase,  that  the 
goods  may  lie  in  the  vendor's  warehouse  rent  fi'ee, 
until  the  vendor  shouhl  want  tlie  room,  this  amo\nits 
to  such  a  complete  transfer  of  the  goods  as  to  put  an 
end  to  the  right  ol'  stoppage  in  transitu.  It  is  sulll- 
cient,  for  all  the  purposes  of  an  executed  delivery, 
if,  in  tli(!  intent  of  the  parties,  the  one  paits  with, 
and  the  other  receives  the  property,  although  there 


I  Ilarmm  v.  Anderson,  *i  (',iiii|i.  I!.  'Jl;i;  Alihott's  Sliipp.,  (i^JO. 

"Ibid.;  IIollingHworlh  v.  Napier,  .'5  (^lines'  11.  1S2.  In  this 
latter  caHC,  there  was  a  delivery  of  a  bill  of  parcels,  as  will  as  an 
order  on  tlic  stf)reke('pcr. 

^  Iliirry  v.  Miinglcs,  1  Camp.  11.  4ry2;  I'hilliiiorf  v.  J^arry,  M. 
51o;  Green  v.  IlayfliMrnc,  1  .Slarkie's  ]{.  117. 


540  THE    LAW    OF     SHIPPING. 

is  no  change  of  placo.'     Thus,  putting  a  uuirk  on  the 
goods  is  a  delivery." 

592.  So,  weighing  the  goods  by  the  vendee  has 
been  held  a  complete  delivery.^  If  a  man  is  in  the 
habit  of  using  the  warehouse  of  a  wharfinger  as  his 
own,  and  makes  that  the  repository  of  his  goods,  and 
disposes  of  them  there,  the  transitus  will  be  at  an  end 
when  the  goods  arrive  at  such  warehouse.'  Every 
case  of  this  sort  must  depend  on  its  special  circum- 
stances. A  safe  rule,  however,  by  which  to  test  the 
question  of  delivery  (in  cases  as  to  the  vesting  of 
property)  is,  whether  anything  remains  to  be  done 
by  the  seller,  as  between  him  and  the  buyer,  before 
the  commodity  purchased  is  to  be  delivered.  If  so, 
a  complete  present  riglit  of  property  has  not  attached 
in  the  buyer.^ 

593.  The  delivery  of  a  shipping  note  by  the  con- 
signee of  goods  to  a  third  person,  with  an  order  to 
the  wharfinger  to  deliver  the  goods  to  such  third 
person,  does  not  pass  the  property  in  them  so  as  to 
prevent  a  stoppage  in  transitu  by  the  consignor. 
The  shipping  note  does  not  amount  to  a  bill  of 

*  Barrett  v.  Goddard,  3  Mason's  R.  107. 

=  Ellis  V.  Hunt,  3  T.  R.  4G4 ;  Stovcld  v.  Ilugbcs,  14  East,  808, 
312. 

^  Hammond  v.  Anderson,  4  B.  &  Pull.  GO. 

*  Tucker  v.  Humphrey,  4  Bing.  11.  516;  Foster  v.  Frampton,  6 
B.  &  C.  109  ;  3  B.  &  P.  127. 

^  Hanson  v.  Meyer,  0  East,  G14;  Austin  v.  Craven,  4  Taunt. 
643;  White  v.  Wilks,  5  Id.  176. 


OF    STOPPAGE    IN    TRANSITU.  541 

ladino; :  a  bill  of  ladins;  is  exactly  like  a  bill  of  ex- 
change,  and  the  property  it  refers  to  passes  by  en- 
dorsement on  it,  but  not  by  delivery  of  it  without 
endorsement.  A  shipping  note,  from  the  nature  of 
it,  is  not  endorsible,  nor  is  an  invoice  (which  is  only 
a  mercantile  name  for  a  bill  of  parcels),  and  there- 
fore the  transfer  of  neither  operates  to  change  the 
property.' 

594.  To  exercise  the  right  of  stoppage  in  transitu, 
it  is  not  requisite  that  the  vendor  should  obtain  ac- 
tual possession  of  the  goods  while  on  their  way  to 
their  destination.  A  demand  of  the  goods  of  the 
carrier,  or  notice  to  him  to  stop  the  goods,  or  an  as- 
sertion of  the  vendor's  right  by  an  entry  of  the  goods 
at  the  custom-house,  or  a  claim  and  endeavor  to  get 
possession,  is  e<|uivalcnt  to  an  actual  stoppage  of 
the  goods. ^ 

595.  It  is  now  well  settled,  as  we  have  alread}^ 
incidentally  stated,  that  bills  of  lading  are  transfer- 
able by  endorsement,  and  thus  may  pass  the  pro- 
perty. Whenever,  therefore,  the  consignee,  lor  a 
valual)le  consideration,  endorses  the  bill  of  lading  to 
a  bondj'ide  purcliaser,  wlio  has  no  notice  of  any  ad- 
verse interests,  tlic  latter  becomes  as  against  the 
world,  the  owner  of  the  goods.  It  matters  not 
whetlier  the  consignee,  in  such  ease,  be  tlie  buyer 


•  Akcrnian  v.  Iluinplircy,  1   Carr.  k  Payne,  52;  S.  1*.  1  JJing. 
R.  51G. 

»  Story's  Abbott,  p.  G3'J,  and  authorities  cited. 


542  THE   LAW  or  shipping. 

of  the  goods,  or  the  lactor,  or  agent  of  the  owner. 
His  transfer,  in  either  eharacter,  is  equally  capa- 
ble of  divesting  the  property  of  the  owner,  and 
vesting  it  in  the  endorsee  of  the  Ijill  of  lading, 
and  when  so  vested  the  right  of  stoppage  is  gone.' 
The  right  of  the  consignor  to  stop  the  goods  {71 
transitn,  upon  the  intervening  insolvency  of  the  con- 
signee, cainiot  be  exercised,  if  the  goods  were  shipped 
to  pay  a  real  debt  due  from  the  consignor  to  the 


consignee.^ 


59 G.  And  so,  too,  if  the  consignee  is  entitled  to  the 
property  for  the  use  of  a  third  person,  although  he 
acts  as  agent  for  the  shipper,  he  stands  in  the  cha- 
racter of  a  trustee  for  such  third  person  ;  and  if  the 
consideration  has  been  paid  by  the  cestui  que  trust, 
the  consignor  can  no  more  reclaim  the  property 
than  he  could  if  the  same  had  been  consigned  directly 
to  the 'person  for  whose  use  the  property  was  in- 
tended.' 

597.  The  simple  fact,  that  the  assignee  of  a  bill  of 
lading  had  notice  that  the  goods  were  consigned  on 
credit,  is  not  sufficient  of  itself  to  render  the  assign- 
ment defeasible  by  the  stoppage  of  the  goods  in  their 
transit,  if  the  transaction  is  not  otherwise  tainted 

'  Conrad  v.  Atlantic  Ins.  Co.,  1  Peters'  Sup.  Ct.  R.  386 ;  Stan- 
ton V.  Eager,  10  Pick.  473 ;  Chandler  v.  Spraguc,  5  Metcalf,  R. 
308 ;  Mason  v.  Lickbarrow,  1  Smith's  Leading  Cases,  Amer.  Ed., 
p.  507,  and  cases  there  cited  and  analyzed. 

•  Wood  v.  Roach,  2  Dull.  R.  180;  S.  C,  1  Yates's  R.  171. 

3  Walter  v.  Ross,  2  Wash.  C.  C.  R.  288. 


OF     STOPPAGE    IN    TRANSITU.  543 

with  fraud.  But  if  the  assignee  be  aware  that  the 
consignee  is  unable  to  pay,  then  the  assignment  will 
be  deemed  fraudulent  as  against  the  rights  of  the 
consignor/ 

'  2  Kent's  Com.  550 ;  Cuniming  v.  Brown,  9  East,  R.  50G. 
As  to  the  transfer  of  the  bill  of  lading,  and  a  change  of  the  papers 
by  the  consignor  and  master,  with  a  view  to  divest  the  interest  of 
the  consignee,  see  1  Binn.  11.  lOG ;  2  Wash.  C.  C.  R.  283,  294, 
403. 


INDEX. 


PAGE 

ABANDONMENT, 

for  total  loss,  power  of  master,  in  case  of,  over  the  cargo,      259 
remedy  of  mariners  for  their  wages  in  cases  of,         .  331 

of  deteriorated  cargo,  for   freight,  whether   it   may  be 

done,        ......  507,  508 

ABSENCE, 

prior  to  the  commencement  of  the  voyage,  of  seamen, 

penalty  for,    ......  57 

what  will  excuse,  ...  ...        .07 

of  seamen,  after  commencement  of  the  voyage,  penalty 

for,    ......  .  58 

must  be  entered  in  the  log-book,  .  .  .  .59 

ACCEPTANCE, 

of  goods,  when,  binds  shipper  for  freight,       .  .  513 

must  be  voluntary, .  .  .'  .  513,  514,  note, 

whether  receiving  proceeds  of  sale,  amounts  to,         .  513 

ACTION, 

for  penalty,  for  not  bringing  homo  destitute  seamen,  in 

whose  name  to  be  brought,  .137 

all  of  tlie  part-owner.",  .should  be  joined  ill,  .  373 

ex  contractu^  against  part-owner.'*,  .  .  383-386 

ex  delicto,  against,  part-owners,  .     383-386 

ACTS  OF  CON(JUESS, 

as  to  employment  of  foreign  seamen,  .  36-39 

as  to  provision  for  di'stituto  seamen,   ...  39 

as  to  shipment  of  peamen,  .  52-54 

as  to  casting  away,  &c.,  of  vessel.*,     .  .         1 1 1 ,  1 1 :?,  1 1 '{ 

as  to  ho.'tpital  money,         ....  l.^^-KiO 

ADVANCE  rAV.MKNT, 

of  freight  and  passage  money,  when  mu.sl  be  refunded, 

427,  442,  413,  491,  492' 
85 


546  INDEX. 

ADVANCE  PAYMENT,  co7itinued. 

when  not  recoverable  back,     .  .  .  491 

AGENT, 450 

AGREEMENT, 

to  displace  a  seaman,  if  found  incompetent  upon  trial,  45 

of  seamen,  when  declared  to  be  void,  .  .  54 

to  sell  cargo  of  stranded  ship,       .  .  .       259,  note  2 

ALLOWANCE, 

of  provisions,  standard  of,        ...  ,  72 

{See  ''  Provisions.";) 
ANCHOR, 

power  of  the  pilot  over,      .....      415 
APPRENTICE, 

master  of,  may  recover  wages  of,       .•  .  .  343 

ASSIGNOR, 

when  bonnd  for  freight,      ....  506-508 


B. 

BAGGAGE, 

of  passenger,  may  be  detained  for  passage  money,   .  283 

■when  carrier  liable  for,       .....      432 
-  a  reasonable  amount  may  be  carried,  .  .  432 

merchandise,  not  included  under  term  of.  unless,  432,  434,  435 
when  money  may  be  carried  as,  .  .  .       433  and  n. 

injuries  to,  or  losses  of,  carrier  responsible  for,  .  435 

must  be  delivered  to  the  passenger  at  the  end  of  the 
journey,  unless,  ......      442 

BAILEE, 

duties  of,  .....  .  197,  note. 

BARRATRY, 

what  constitutes,     .  .     •       .  .  .107,109,110 

who  may  commit,        .  .  .  .  .107,  108 

BILL  OF  EXCHANGE, 

{See  "  Bill  of  Lading.'-) 

BILL  OF  LADING, 

master  may  sign,     .....        162,  note, 
goods  must  be  on  board,  before  signing,         .  .  164 

Jien  for  execution  of,  .  .  .  .  167,  168 

•whether  it  can  be  varied  by  proof  of  a  particular  custom 

or  general  usage,  .....  209,  241 
meaning  of  clean  bill  of,  .....  209 
imports  that  goods  are  to  be  carried  under  deck,       .  209 

■when  master  not  to  deliver,  .  ,  .        221,  note. 


INDEX.  5-47 

BILL  OF  LADING,  continued. 

evidence  of  contract  for  conveyance,  .  .  .  450 

how  many  executed,  .....      450 

whether  master  must  sign,      ....  450 

whether  master  has  per  se  authority  to  sign,         .        451  and  n. 
whether  and  in  what  cases,  master  may  execute  bill  of 

lading  for  goods  not  on  board,  .  .  .  452 

character  of,  .  .  .  •  .  .453 

how  far  open  to  explanation,  .  .  .     453,  454,  and  n. 

effect  of,  when  forged,       ....  453,  n. 

effect  of  a  demand  of,  .  ....  455 

evidence  of  title  to  the  property,    ....      455 

holder  or  assignee  of,  entitled  to  the  goods,  against  the 

charterer,       ......  456 

stipulation  in,  giving  privilege  of  reshipment,       .  456-458 

liability  of  master,  in  cases  of  reshipment,     .  .     456-458 

who  may  sue  upon,  .  .  .461,  462,  466  and  n. 

when  property  passes  by  delivery  of,  .  .  464 

how  construed,       ......      468 

when  contract  by,  dissolved,   ....  468 

transferable  by  endorsement,  .  .  •  .541 

transfer  of,  defeats  right  of  stoppage,  .  .  .  541 

BILL  OF  SALE, 

of  a  vessel,  what  must  set  forth,    .  .        364,  note, 

of  a  vessel,  when  it  amounts  only  to  a  mortgage,      .  392 

unconditional,  makes  holder  liable  for  repairs  and  sup- 
plies,       .....■•      395 
unconditional,  may  be  shown  to  be  a  mere  mortgage,  395 

open  to  explanation,     ....  396,  note, 

of  a  vessel,  wliere  to  be  recorded,  .  .         399,  note. 

BLOCKADE, 

effect  of  breach  of,       .  •  •  •     185,  227 

BOTTOMRY  BOND, 

when  master  may  give,      .  .  .  .  .181 

wliat  degree  of  necessity,  essential  to  the  validity  of,  181 

when  lien  of,  takes  precedence  of  wages,  318,  319,  320 

lien  of,  upon  subsefjuent  repairs,  .  .  .     321,  note  1. 

BOTTOMRY  LENDER, 

not  to  sec  to  the  application  of  the  money,     .  181 

C. 
CANALS, 

freezing  of,  excuses  delay  of  carriers,  •  ^^^t  ^04 

CANAL  BOATS, 

not  to  be  libelled  for  wages,     .  ••  -"^ 


54S  INDEX. 

CAPTURE, 

followed  by  discharge  of  the  seamen,  effect  of,  upon  their 
wages,     .... 

duty  of  master  and  mariners  in  case  of, 
of  contraband  goods, 
of  enemies'  goods  in  a  neutral  ship,    . 
ellect  of,  upon  contract  of  afiVeightment, 
effect  of.  upon  freiglit,  . 
CARGO, 

duty  of  mate  with  respect  to, 
master,  a  stranger  to,  except,  &c., 
when  master  may  purchase, 
clandestinely  taken  on  board,  effect  of, 
when  bound,  by  the  acts  of  the  master, 
affected  by  resistance  of  convoy  ship, 
when  subject  to  condemnation, 
when  master  may  and  must  sell, 
when,  must  be  transhipped, 
when  master  may  hypothecate, 
effect  of  lading  upon  the  deck, 
law  presumes,  to  be  carried  under  deck, 
when  may  be  carried  on  deck, 
injury  to,  when  must  be  borne  by  shipper,  and  when  by 
the  carrier,     .....  217,  note. 

addhional,  may  be  taken  in,  at  port  of.  distress,   .  .      243 

power  of  master  over,  either  to  sell  or  hypothecate,  to 
procure  repairs,  ....  249,  266,  267 

when  perishable,  duty  of  master,         .  .        251,257,259 

when  must  be  stored,         ....  257,259 

effect  upon  wages  of  a  mariner,  who  sells  by  order  of 

the  mate,  to  obtain  supplies,  .  .  .  266 

delivery  of,  .....  271-287 

responsibility  of  ship-owners  for  damage  to,  .  .     288-313 

must  be  delivered  in  a  reasonable  time,   .  .  312,  313 

lien  of  seamen  upon,    .....  323 

injury  to,  by  fault  of  master,  may   be  deducted  from 
freight,     ......  508,  509 

whether  freight  due  for  carriage  of,  when  lost  by  perils 
of  the  sea,      ....  .  510 

voluntary   acceptance  of,   by   shipper,    effect   of,    upon 

freight,     .......      513 

CASTING  AWAY, 

of  a  vessel;  offence  of,  .  .  .  .  ill 


, 

131,  132 

,         , 

192-195 

, 

224-229 

.         . 

282 

, 

.   486 

• 

485-491 

156,  157 

»           • 

164,  166 

.   165 

169. 

,469,  470 

.  186,' 

187,  188 

. 

187,  188 

.   188 

189,  191, 

192,  479 

.  190- 

-193,  513 

, 

191 

.  199, 

206,  207 

209 

.   210 

INDEX.  549 


CERTIFICATE, 

of  American  consul,  evidence,  when,       .  .  .      137 

«  "        effect  of,  .  .  .  147 

CHARTERER, 

upon  incapacity  of  the  vessel  may  betake  himself  to 

another,    .......      254 

must  repair,  at  expense  of  the  owner,  .  .  254 

goods  of.  hypothecated  to  the  seamen  for  their  wages,     .      323 
when  he  succeeds  to  all  the  liabilities  of  owner,  347-352 

when  liable  for  full  freight,  ....      494 

bound  for  freight,  while  vessel  is  undergoing  repairs,    496,  497 
when  entitled  to  exclusive  possession  of  the  vessel,  .  497 

CHARTER-PARTY, 

when  master  may  make,   ....  IGl,  162,  163 
contract  by,       .  .  .  •  ^■^^ 

payment  of  freight  determined  by,  .494-496.511 

how  construed,  .  .  •  •  •  515 

CIVIL  LAW, 390 

COASTING  TRADE, 

vessels  engaged  in,  how  to  be  manned,  .  .        39,  40 

COLLISION, 

cause  of,      .  .  •  ■  •  ••      ^^^ 

in  what  cases  insurer  is  bound  to  pay  the  damage  cause^l 

by,     .  .  •  •  •  270,  note, 

constitutes  "a  peril  of  the  sea,"  when,      .  .  •      308 

lien  arising  from,  .....  320 

COMMON   CARRIERS, 

liability  of,  by  the  civil  law,  .  .  196,300,301 

liability  of,  by  the  common  law,  .     19G,  197,  288,  293,  313 

liable  in  inland,  as  well  as  foreign  navigation,        197,  201,  288 
liability  of,  in  case  of  fire,  .  .      197,  note,  298-301 

must  provide  a  sufficient  vessel,  .  .  .     198,311 

must  keep  the  vessel  in  repair,  198,  199 

liable  for  losses  arising  from  a  latent  dnfect  in  the  vessel,      198 
difference  between  the  contract  of,  and  the  contract  of 

insurance,  .  .  •  •  ^^^ 

must  provide  a  competent  crew,    .  .  .201 

chargeal)le  with  the  most  exact  diligence,  as  to  the  lading 

and  carriage  of  goods,  ....    206,  261 

when  responsibility  of,  begins.       ....      206 
must  stow  the  goods  under  deck,  •    206,  207 

not  responsible  for    goods  furtively  brought    on  board, 

unless,  &c.,  .  .  ■  .      2U 

must  stow  the  goo<ls  according  to  the  cu-slomary  mode,        213 


550  INDEX. 

COI\i:\ION  CARRIERS,  continued. 

how  mui^l  stow  the  goods,  in  the  absence  of  usage,  .  214 

\vhcu  relieved  from  liability  for  stowage,  .  215,  2 IG 

must  provide  tackle,  dunnage,  &.C.,     .  .  .    217,218 

must  not  overload  the  vessel,        .  .    218,  220,  221,  note, 

violation  of  contract  by,  as  to  (juantity  of  cargo,    .  .      218 

must  take  no  contraband  goods,  .  .  .  219 

whether  liable  for  losses  occurring  in  consequence,       224,  225 
efTect  of  unneutral  conduct  of,        .  .  .  .      229 

bound  to  provide  the  vessel  with  all  the  usual  documents, 

229,  230 
what  causes  excuse  for  delay  in  the  voyage,  .  232,  233,  234 
must  proceed  in  the  customary  or  stipulated  route,  233,  239 
may  deviate,  in  what  cases,  .  .  .  234,  237,  305 

duty  of,  when  voyage  is  interrupted,  .  .  .    240,  250 

must  tranship  or  carry  the  cargo  on  in  a  reasonable  time, 

or  not  entitled  to  freight,  ....      217 

duty  of,  with  respect  to  perishable  cargo,         .  .  251 

when  bound  to  sell  the  cargo,  .  .  .         251,  257 

what  will  exempt  from  liability,  .  261,  262,  301-305 

liable  for  injury  caused  by  rats  and  worms,  .  263-265 

must  deliver  goods  at  port  of  destination,       .  .  277 

Avhat  is  sufficient  delivery  by,  .  .  .273,  274 

by  land,  must  make  personal  delivery,  .  .    278,  279 

lien  of,  for  freight, 280-283 

whether  any  difference  in  liability  between  carriers  by 

water  and  land,         .....    288,  289 
bound  to  receive  the  goods  offered,  .  .  .      289 

when  bound,  although  the  loss  arose  from  a  peril  of  the 

sea,    .......  296 

must  carry  goods  according  to  the  direction  of  shipper, 

when,  kc.y  ......      301 

must  use  diligence  as  to  time  of  delivery,       .  .  304 

liability  of,  in  cases  of  collision,     ....      308 

liable  for  the  whole  route,  although,  &c.,        .      310,  311,  note, 
when  liable  for  delay  in  delivering  the  cargo,  caused  by 

detention  to  repair,  .  .  .  .  311,312 

must  deliver  cargo  in  a  reasonable  time,         .  .  312 

contract  of,  for  conveyance  of  goods,         .  .  .      428 

contract  of,  for  conveyance  of  passengers,      .  .  428 

bound  to  receive  pas.sengers  on  board,      .  .  .      428 

liability  of,  as  to  bsiggage,        .  .  .  .  435 

limitation  of  liability  of,  by  "  notices,"      .  .  436-442 

when  steamboats  are,  .  458,  459,  and  note. 


INDEX.  551 

COMMON  CARRIERS,  continued. 

action  against,  in  whose  name  to  be  brought,  .  4C6 

liabihty  of,  when  dependent  upon  the  question,  whether 

entitled  to  freight,      .....  500 

not  discharged  from  liability,  by  shipper's  acceptance  of 
the  goods,  .....        509,  note. 

COMxMON  LAW, 390 

CONDEMNATION, 

what  acts  will  subject  to,   .  .  .  .  188,  222-229 

CONDONATION, 

when  operative,  in  favor  of  a  seaman,  .  .  145 

CONFINEMENT, 

of  the  master,  what  amounts  to,     .  .  .  120,121 

assault  and  battery,  does  not  amount  to,         .  .  121 

CONSIGNEE, 

when,  cannot  maintain  an  action  for  injury  of  goods  by 

carelessness  of  carrier,    .  .  .  .  ,217 

may  direct  the  master  as  to  delivery  of  the  goods, 

273,  note,  279,  280 
may  arrange,  &c.,  as  to  mode  of  delivery,      .  274 

special  promise  of  master  as  to  mode  of  unloading,  .      275 

when  bound  to  receive  the  goods,       .  275 

when  dead  or  absent,  duty  of  master,        .  276-278 

what  amounts  to  delivery  to,    .  .  .  450,  note  3 

when  property  vests  in,       .  .  .  .460 

when  may  sue  upon  bill  of  lading,  .  461,  462,  and  note,  466 
when  no  authority  over,  or  interest  in  the  consignment,  .  464 
when  refusal  to  accept  a  draft,  divests  him  of  property 

in  the  consignment,         .....      464 
whether  not  liable  to  pay  a  draft,  when  he  receives  the 

consignment,  .  .  .  .  ■  465 

duty  of  master,  acting  as,  170-172,  188,  191,  213,  272,  469 

when  bound  for  freight,      .  .  502,  503,  and  note,  504 

when  purchaser  from,  bound  to  pay  freight,  .  506,  507 

right  of  stoppage,  &c.,  adverse  to,  ...     523 

{See  "  Stoim'A(;k  in  Transitu.") 
when  insolvent,  may  dinagrec  to  consignment,  .      523 

duty  of,  when  disagreeing  to  consignment,     .  .  523 

in  such  a  case,  cannot  assign  the  goods  for  sale,  .      523 

may  recover  goods  that  have  been  stopped  upon   jiay- 

mcnt  of  the  price,      ....  •'>25 

CONSIGNOR, 

when  may  sue  upon  bill  of  lading,  "''1>  ■!•'';  "'^ 

when  deemed  the  agent  of  the  consignee,      .  >'•• 

may  sue  where  consignment  was  procured  by  fraud,        .      4<>3 


552  INDEX. 

CONSIGNOR,  contvwcl 

may  sue,  where  carrier  contracts  to  bo  liable  to  him,  464 

when  liable  for  freight,  ....    503,  504 

when  may  e.xercise  the  right  of  stoppage  in  transitu,        .      519 
may  reclaim  goods,  after   they  have  reached  the  con- 
signee, when,  .....  520 
{See  "  Stoppage  in  Transitu.") 
must  pay  freight,  &c.,  when  he  reclaims  his  goods,  525 
not  bound  to  refund  part-payment,  to  e.xercise  right  of 

stoppage,  &c.,  .....  525 

may  stop  the  goods  for  unpaid  balance,    .  .  525 

may  sue  for  the  price,  if  ready  to  deliver  the  goods, .  525 

CONSUL, 

to  provide  for  destitute  seamen.       .  .  .  .39 

in  what  cases,  empowered  to  appoint  inspectors  of  ves- 
sels, .......  68 

duties  of,  upon  receiving  the  report  of  inspectors,  68,  69 

who,  and  in  what  cases,  may  exercise  the  powers  of,       .        70 
penalty,  for  not  permitting  seamen  to  see,       .  134,  note, 

when  may  discharge  seamen,        ....      135 

advice  of,  does  not  justify  illegal  acts,  .  .  135 

duty  of,  to  provide  for  destitute  seamen,   .  .  .136 

proper  judge  of  the  vessel,  on  board  of  which  destitute 

seamen  shall  be  brought  home,        .  .  .  138 

certificate  of,  effect  of,        .  .  .  .  .      147 

"  CONTENTS  UNKNOWN," 

meaning  of,  in  bill  of  lading,  .  ."  .  .  471 

CONTRABAND  OF  WAR, 

must  not  be  furnished  by  a  neutral,  .  .      187 

liable  to  seizure  and  confiscation,  .  .     187,  223 

carrier,  must  not  take  on  board,    ....      219 
origin  of  the  term,        .....  224 

capture  of,  effect  upon  the  innocent  part  of  the  cargo,  225 

affects  all  the  property  of  the  same  owner,  22(5,  note  2,  229 

how  many  descriptions  of,       .  .  .      227,  228,  note, 

whether  provisions  are,       .....     228 

COxNTRIBUTION, 

when  shipper  of  goods  entitled  to,       .  .  .  269 

for  payment  of  salvage,       .  .  .  .  .511 

CONVEYANCE  OF  GOODS, 

contract  for,       ......  428 

difference  between  contract  for,  and  contract  for  convey- 
ance of  passengers,         .....      428 

CONVEYANCE  OF  PASSENGERS,  .  .  .     423-448 

(See  "  Passenger,"  "Common  Carriers,"  and  •'Baggage.'") 


INDEX. 


553 


18" 


187 


241 


113 


CONVOY, 

effect  of  sailing  under,  upon  a  neutral  ship,  kc,  . 

resistance  of,  involves  ships  and  cargoes  sailing  under 
protection  of,  ..... 

COVENANTS, 

express  and  implied,  distinction  between. 
CORPORATIONS, 

for  what  purposes,  deemed  persons,    .  .  •    11-, 

CREW, 

competent,  must  be  provided  by  common  carriers,  .      201 

when  evidence  of,  admissible  to  prove  their  competency, 

201,  202 

CRIMINAL  LAWS, 

construction  of,  .... 

CUSTOM, 

•when  binding  upon  parties, 

office  of,  .  .  •■  • 

cannot  contradict  express  agreement, 

as  to  the  stowage  of  goods,  must  be  followed, 

when,  controls  bill  of  lading, 

when,  controls  mode  of  delivery, 

may  control  time  of  payment  of  passage-money,  . 


117,  118 

207,  208 
208,  note. 

208,  209 
213 

.      241 

273,  274 

.      443 


D. 

'•'  DANGERS  OF  THE  NAVIGATION,"' 

meaning  of,  .  ■  •  • 

freezing  of  canals,  &.C.,  .  .  .  . 

DEFEASANCE, 

instrument  of,  need  not  be  under  seal, 
DEBTS, 

of  seamen,  when  not  rcroverablo, 
DELIVERY, 

what  amounts  to,  by  common  carrier, 

personal,  when  re(iuired, 

why  personal,  is  not  rccinired  by  water  carriage,  . 

may  be  demanded  on  shipboard, 

on  board  a  lighter,  .... 

payment  of  freight,  must  precede, 

duty  of  master,  when  there  are  conflicting  claims  to 
property,  .  .  .  .  • 

efTect  of,  to  a  carrier  of  the  consignee, 

what  sufTicient,  to  vest  property  in  assignee, 


241,  303,  note. 
.     303.  304 


395 


fiO 


273, 

271 

278, 

279 

279 

279, 

280 

280 

281 

the 

285, 

468 

4.'-.0, 

n.3 

450, 

n.  3 

554  INDEX. 

DELIVERY,  continued 

essential  to  perfect  the  riglit  to  freight,  unless,  .  483 

to  a  warehouseman,  whether  it  determines  the  right  of 

stoppage,  .  .  .  .  .  .535 

what  is  constructive,     ....         537,  539,  540 

what  amounts  to,  when  goods  stored  in  a  warehouse 

are  sold,  ......       538 

DEMURRAGE, 498 

DESERTION, 

prior  to  commencement  of  the  voyage,  of  seamen,  pu- 
nishment for,       ......         56 

does  not  disqualify  the  seaman  from  protection,  under 
the  laws  of  the  U.  S.,  .  .  .  .  138 

DEVIATION, 

when  it  constitutes  barratry,  .  .  .  .110 

discharges  seamen  from  the  obligation  to  proceed  on  the 

voyage,         ......  128 

effect  of,  upon  carrier,       .  .  218,  219,  233,  234,  302,  303 

what  constitutes,  ....  233,  234,  242 

to  avoid  danger,  whether,  ....       234 

not,  to  save  life,  .....  235 

to  lie  by,  to  save  property,  .  .  .  .235 

eflfect  of,  upon  insurance,         .  .  .  .  231 

whether  predicable  of  river  navigation,  .  .  238,  note, 

whether  carrier  liable  for  loss  from,  when  mistaken,     30.5,  306 

DISCHARGE  OF  SEAMEN, 

upon  a  voluntary  sale  of  the  vessel,  .  .      129-133 

upon  application  to  a  consul,         ....       135 
for  unusual  or  cruel  treatment,  .  .  .  135 

maliciously  and  without  justifiable  cause,  .  139,140 

for  what  causes,  ....     140,  note  2,143 

not  justifiable,  for  a  single  offence,  unless,  .       144,  note  1 

DISIMISSAL  OF  THE  MASTER, 

may  be  at  pleasure,    .....       183,  184 
by  admiralty  process,         ....       184,  note  3 

DRAFT, 

refusal  of  the  consignee  to  accept,  how  it  afTectshis  right 

to  the  goods,  .....  464 

DUNNAGE, 

what  is,       .  .  .  .  .  .  .       218 


E. 


EMBARGO 


hostile,  of  ship,  discharges  lien  for  freight,   .  .  282 


INDEX.  555 

EMBEZZLEMENT, 

^vhen  the  mate  is  responsible  for,  .  .  .157 

master  and  owners  responsible  for,     .  .  .     183,  265 

ENDEAVOR  TO  COMMIT  A  REVOLT, 

compelling  master  to  return  to  port,,  when  the  vessel  is 

seaworthy,  amounts  to  offence  of,  .  .  66,122 

what  is  a  sulficient  defence  to  an  indictment  for,         .  66 

what  constitutes,  ....  119,124,126 

enrol:ment. 

of  a  vessel,  what  must  set  forth,    .  .  .        363,  note. 

"ENTIRE  CAPACITY,"' 

meaning  of,      .  .  .  •  •  •  221 

F. 

FACTOR, 

when  master  acts  as,  owners  discharged  from  liability,  170-172 
FIRE, 

lo-sses  by,  how  they  affect  the  carrier, 

197,  note,  298-301,  459,  note. 
FISHERIES, 

vessels  engaged  in,  how  to  be  manned,    .  .39 

contract  of  seamen  engaged  in,  when  required  to  be  in 

writing,  .  .  .  •  •  .         45,  60 

FISHERMEN, 

engaged  in  bank   and  other  cod-fisheries,  must   have 

their  contract  in  writing,  .  .  .  .     45,  60 

what  the  contract  of,  must  express,  .  ■  60-61 

penalty  upon,  for  failing  to  enter  into  a  written  contract,  61 

penalty,  for  neglect  or  refusal  of  duty,  ...  61 

FISHING  BOUNTY, 

upon  what  condition  allowed,  .  .  .39 

when  forfeited,    .  .  .  .  .61 

FLOGGING, 

abolished  in  the  navy  and  merchant  service,  .  .    85 

FOKGEiiV, 

of  bill  of  lading,  ....  453,  note. 

FOREIGNERS, 

when  deemed  to  be  "  seamen  of  the  1'.  S."'  39,   138 

when  deemed  to  be  a  part  of  the  crew,  •    '1'^ 

admiralty  juri-sdiction  of,  .  .  .  •         ■^^' 

FORERJN  V0YA(;E, 

meaning  of,     .  .  .15 

whaling  and  fishing  voyages,  not  con!<idered  as,  45 


556  INDEX. 

FORWARDING  MERCHANT, 

duties  of,  .....  .  467 

FRAUD, 

efFect  of,  upou  wages  of  seamen,  .  .  .152 

effect  of,  upon  right  of  stoppage  in  transitu,  .  .  520 

FREIGHT, 

definition  of, 472,  473 

master  cannot  pledge  for  his  private  purposes,  .  163,  note, 

bound  by  contract  of  master,      ....         166 
extra,  when  must  be  paid,     .  .      190,  note,  246,  247,  496 

deck,  when  payable,         .....         210 
neutral  carrier  of  enemy's  property,  entitled  to,  unless, 

227,  note,  282,  485-491 
effect  of  deviation  upon,  ....  235,  note, 
when  full,  must  be  paid,  although  cargo  was  not  carried 

on, 246 

extra,  must  be  paid  on  transhipment,  .  .       246,  247 

full,  must  be  paid,  if  shipper   demands   the   goods   at 

intermediate  port,       .            .             .  250,  478,  479,  513 
when  not  due,         .             .             .  251,  252,  253,  470,  479,  480 
lien  for,              .....       280,  and  note, 
lien  for,   how   affected  by  stipulations  in   the  charter- 
party,        280,  281,  501,  502 

lien  upon,  of  seamen,  for  their  wages,  318,  321,  323,  and  note, 
lien  upon,  of  master,  for  advances  and  wages,  .     504-506 

lien  upon,  how  enforced,    .....      324 

and  passage-money,  governed  by  the  same  rules,      .  473 

not  due,  unless  carriage  of  the  goods  is  completed,  except, 

478,  483,491 
due,  although  goods  are  delivered  in  a  worthless  condi- 
tion, .  .  .  .  .  .  .478 

due,  if  shipper  demands  the  goods  at  an  intermediate 

port, 478-479 

not  due,  if  voyage  is  broken  up,     .  .  .  .      470 

not  due,  when  goods,  from  necessity,  are  sold,  except,  &c., 

479-483,  510 
not  due,  when  port  of  distress  and  acceptance  of  the 
cargo  is  the  port  of  shipment,     ....      48^ 

due,  when,  by  official  order,  the  cargo  is  not  landed,    483,  484 
not  due,  if  non-arrival  was  occasioned  by  reason  of  a 
blockade,      ......  484 

due,  notwith-standing  an  interruption  of  the  voyage,       484,  496 
effect  upon,  of  war,  interdiction  of  commerce,  and  cap- 
ture,           486-491,  511 


INDEX.  557 

FREIGHT,  coiUimied. 

advance  payment  of,  when  must  be  refunded,  .    491,  492 

upon  animals,  ......      492 

■when  amount  of,  will  be  determined  by  usage,  .    493,  494 

when  determined  by  the  charter-party,  494,  511,  512,  515,  516 

when  charterer  bound  to  pay  full,  .  494-496 

when  charterer  not  entided  to  receive,  .  .  512 

whether  due    upon  charter-party,   whilst   the  vessel  is 

being  repaired,    ...-••      497 

when   due,  upon  charter-party,  notwithstanding  hostile 

497 
seizure,  .  .  •  •  •  •  ^'" 

how  affected  by  clause  to  pay  demurrage,  •     498 

efTect  of  reshipment  upon,        ....     498-500 
whether  owner  must  pay,  when  the  goods  were  shipped 

by  a  wrong-doer,  .  •  •  499,  and  note, 

right  of  detention  for,    .  •  •  •  •  ^^^ 

when  consignee  bound  for,  .  •  502,  503 

when  purchaser  or  assignee  of  the  consignee,  bound  for, 

506,  507 

deteriorated  goods,  whether  master  may  abandon  for, 

507,  508,  509 

not  due,  for  goods  which  perish  during  the  voyage  by 

leakage,  &c., 509 

when  due,  notwithstanding  loss  of  the  goods,       .  .      510 

how  to  be  paid,  upon  goods  thrown  overboard,  .  511 

effect  upon,  of  capture  and  recapture,       .  .511 

when  must  be  paid,  according  to  quantity  delivered,  512 

not  due,  for  goods  saved  by  salvors,    .  .  .  512 

not  due,  if  master  refuses  to  perform  the  voyage,  .      513 

p>o  rata,  when  due,      ....         481,513-518 
pro  ra/a,  how  computed,    .  .  .  •  514,515 

general  principles,  with  respect  to,   may  be  controlled 

by  contract,  .  .  •  •  51t) 

when  voyage  out  and  in,  is  an  entire  one, 

515,  516,  517,  and  note, 
accruing,  is  Iranslerrcd  by  tran.'-li-r  111  ship,  .      518 

con.-ignor  muat  pay  when  he  reclaims  tlic  goods,  524,  525 

FROST, 

damage  by,  .  .  309.310 


55S  INDEX. 

G. 
GENERAL  AVERAGE, 

whether  tlie  jettison  of  deck  goods  constitutes  a  case  of,        207 

in  case  of  the  sale  of  a  shipper's  goods,  .        269,  481,  482 

when  freight  to  be  paid  by  way  of,  .  .  .511 

GENERAL  SHIP, 449 

H. 

HOSPITAL  MONEY, 

for  rehef  of  seamen,  .  .  .  .  157,160 

whether  ships  in  the  whale,  &c.,  fisheries  are  bound  to 
contribute  to,  .....  159 

HOYMAN, 

responsibility  of,     .  .  .  .  .  .197 

L 

IMPRISONMENT, 

of  seamen,  when  allowed,       ....       90,  93 
effect  of,  upon  wages,        .  .  .  .  .93 

INCOMPETENCY, 

effect  of,  upon  wages  of  seamen,        .  .  .    151,152 

INSOLVENCY, 

criterion  of,  .  .  .  .  .  .       519,  note. 

INSURANCE, 

master  not  an  agent  to  procure,  .  .  .  164 

contract  of,  different  from  carrier's,  .  .  198,  199 

what  avoids  policy  of,   .  .  .  .  198,  note  2 

effect  of  subsequent  neglect  by  master  and  crew  upon, 

202,  note  2 
upon  contraband  goods,  effect  of,  .  .  .  .     224 

effect  of  deviation  upon,  ....  234,  235 

when  policy  of,  grants  liberty  to  touch  at  a  port,  master 

may  discharge  or  take  in  additional  cargo,        .  .     242 

premium  for,  when  not  recoverable  by  a  part-owner,  370 

effect  upon,  of  not  taking  a  pilot,  .  .  419,  note  7 

INSPECTORS, 

of  vessels,  consul  may  appoint,  in  what  cases,  .       63,  68 

duties  of,  when  appointed,  .  .  .63,  68,  69 

INTEREST, 

when  to  be  paid  by  common  carrier,  upon  losses  of 

goods,  ......   265,  266 

INTERFERENCE, 

of  master  with  the  pilot,     .  .  .  .  .413 


INDEX.  559 

J. 

JOINDER, 

of  part-o\ATiers  in  a  suit,  ....   383-387 

non-joinder  of,  how  taken  advantage  of,     .  383,  384,  note. 

JOINT  TENANTS, 

part-owners  of  a  ship  not,    .....    355 

of  a  boat,  whether  responsible  in  solido,  .  .  373,  374 

whether  underwriters  become,  upon  abandonment,       388,  389 
JURISDICTION,  ADxMIRALTY, 

of  marhime  torts,      ......    173 

of  maritime  contracts,     ....      240,291,425 

extent  of,  as  to  locaUty,         .  .  .  315-318,407 

of  wages  earned  in  rigging  and  fitting  out  a  ship  for  a 
voyage,  &c.,     ......  332 

of  wages,  earned  before  commencement  of  the  voyage,       333 
of  wages,  when  voyage  is  abandoned,         .  .       333,  334 

wages  must  be  earned  in  the  business  of  commerce, 

&c.,  to  give  jurisdiction,     ....  334 

does  not  extend  to  wages  earned  after  voyage  is  ended,       335 
does  not  extend  to  wages  earned  on  board  a  public  ship,      336 
of  foreigners,        ......         337 

of  seaman's  contract,  when  evidenced  by  a  sealed  in- 
strument,   ......       338,  339 

when  exercised  to  decree  the  sale  of  a  vessel,  held  in 

common,  .....      359,  369-372 

in  cases  where  title  to  a  ship  is  in  question,  .     359,  note, 

upon  application  of  part-owners,  .  .  356-361 

to  dispossess  the  master,  who  is  part-owner,  .  365 

to  adjust  accounts  between  part-owners,  .  .         382 

upon  questions  of  mortgage,  .  .  •  398 

of  pilotage  services,         .....         407 

of  passenger  contracts,  .  .  425,  473,  n.,  474-478 

of  maritime  contracts,  where  breach  occurs,  before  per- 
formance of  the  voyage,    .....  477 

JUSTIFIAHLE  CAUSE, 

what  constitutes,  in  the  discharge  of  seamen, 

140,  Ml,  1  13,  note  2 

L. 

LANGUAGE, 

violent,  looked  upon  with  suspicion,  when  employed  at 

the  moment  of  the  infliction  of  punishment,    .  98 

whether  disrespectful,  justifies  tho   master  in  ntrikin;,'  a 

blow, 98,  nolo. 


5G0  INDEX. 

'•  LAWFUL  GOODS,'" 

meaning  of,  .....  •      220 

LEAK  IN  SHIPS, 

damage  caused  by,  who  liable  for,     .  .  .  266 

LIEN, 

of  creditor,  created  by  contracts  of  the  master,     .  1G6,  1G7,  168 
lost  by  neglect  to  enforce,  .  .166,  173,  339,  340,  note  2 

in  cases  of  collision,     .....  173 

for  repairs  and  supplies,     ....  179,  180 

upon  the  vessel,  for  master's  breach  of  his  duties  as 

common  carrier,       ....         206,  214,  291 

upon  a  chartered  vessel,  for  damage  to  the  goods,         217,  291 
of  shipper,  for  the  proceeds  of  the  sale  of  his  goods, 

267,  and  note, 
for  freight,  ....       280,  and  note,  472 

for  freight,  discharged  by  hostile  embargo  of  the  ship,  282 

on  baggage  of  passenger,        ....     283,  444 

for  injury  to  shipper's  goods,         .  .  .  .291 

maritime,  priority  of,       314,  note,  318,  319,  320,  324,  325,  339 
essential  character  of  maritime  liens,      .  .  314,  note, 

of  seamen,  upon  the  ship  and  whatever  is  substituted 

for  it,       ....  .  318,322 

ex  contractu,  rule  as  to  preference,      .  .         319.  note,  320 

ex  delicto,  rule  with  respect  to,      .  .       '      .  .320 

how  discharged,  v/hen  there  are  several  creditors,  and 

one  has  double  security,     .  .  .  •  321 

of  seamen,  upon  goods  taken  on  freight,        323,  324,  and  note, 
of  seamen,  for  antecedent  voyages,        325,  and  note,  32G,  327 
upon  the  property  of  a  foreigner,  .  .  .       337 

when  to  be  enforced,  ....      336,  337 

what  acts  will  defeat,        .  .  .  .340,341,342 

e.\ists  against  the  government,  .  .  .  343 

of  a  part-owner,    ......       379 

of  a  ship's  husband,    .....  379 

for  pilotage, 407,  408 

upon  the  vessel,  for  misconduct  of  a  licensed  pilot, 

417,  and  note  3,  418 
of  a  passenger,  for  breach  of  his  contract,    .  425,  473 

of  carrier,  upon  goods  received  of  a  wrong-doer,  499,  and  note, 
for  freight  when  discharged,  ....  500 
dLslinction  between  maritime  and  common  law  liens.  500 

what  agreement  of  the  parlies,  inconsistent  with  the  con- 
tinuance of,  .  .  .  .  .  501 
not  waived  by  delivery  of  the  goods  upon  false  and 

fraudulent  representations,        ....        502 


IXDEX.  561 

LIGHTNING, 

a  loss  by,  considered  as  the  "act  of  God,"'  .  .              297 

LIVING  ANLAIALS, 

freight  of.  .            .            .            .            .            .  .       492 

LOG-BOOK, 

absence  of  seamen,  to  be  entered  in,             .  .                58 

entry  of  absence,  how  rebutted,  ....  57 

entry  in,  indispensable  evidence  of  desertion,  .                59 

•what  is  deemed  a  proper  entry,   .            .            .  .          59 

when  entry  of  absence  must  be  made,          .  .                59 

name  of  absenting  mariner,  must  be  entered  in,  .          59 

mate  must  keep,          .....  157 

what  it  should  contain,     .            .            .            .  .157 


M. 


MALICE, 


when  implied,  .....  174 

MALICIOUSLY, 

meaning  of,  in  the  act  relating  to  the  discharge  of  sea- 
men,     .  .  .  .  .  141,  and  note  1. 

MArdNER'S  CONTRACTS, 

implied  warranty  in,  that  the  party  is  competent,  &c.,  lal 

breach  of,  effect  upon  wages,  .  .  .       151,  152 

(Vide  'SuippiNf;  Articles"  and  ''Seamen's  Wages."') 
MARITLME  CONTiiACTS, 

whether  principles  of,  are  applicable  to  interior  naviga- 
tion,       .......       243 

MARITLME  LIENS, 

peculiarity  of,  .  .  .  .  .  .  500 

MARQUE  SHIPS, 

lien  on,  for  wages,  may  be  enforced  in  the  Admiralty,   .       336 
MASTER, 

appointmnnt  of,  ....  .  33 

liability  of,  ....     31,35,86,182,372 

must  make  an  agreemeiit  in  writing  or  print  with  the 

seamen  for  their  services,    .  .  .12,43 

penally,  for  failure  to  do  so,  .  .  .  43 

mu.st  proceed  to  the  ports  do.scrilied  in  the  .shipping  arti- 
cles, in  the  order  in  which  llioy  stand,        .  .  50 
when,  may  proceed  to  a  port  not  described  in  the  articles,  50-52 
one  owner  of  a  fi.Hliing  vcKsei,  acting  a.s,  binds  the  others,         6 1 
impliedly  agrees,  that  the  chip  shall  bo  found  seaworthy,  63,  64 
bound  to  provide  good  and   sufliciciit  provisions  for  tin! 

seamen,  .  .  .  .  .  0 1,  To 

8C 


5G2  INDEX. 

MASTER,  coniimiccl. 

in  what  cases,  must  pay  tlie  expenses  of  a  survey,  .  69 

when    excused   for  not  having  on  board  the  requisite 

quantity  of  provisions,  .  .  .  .  .72 

must  oversee  the  expenditure  of  tlie  provisions,  72 

uhether  entitled  to  be  cured  at  the  expense  of  the  ship,  83 

authority  over  mariners,      ....  85-106 

analogy  of  authority  of,  to  that  of  a  parent,   .  .  85 

authority  of,  not  of  a  military  character,  .  .  .86 

when  he  may  take  life,  ....  87 

■what  acts  will  justify  the  infliction  of  punishment  upon 

the  seamen,        ......  89-97 

when  he  may  confine  the  seamen  on  board  the  ship,  90 

whether  he  can  confine  the  seamen,  in  a  prison  or  guard- 
ship.  ......  91 

when  he  may  use  deadly  weapons,  .  .  .93,  94 

when  he  may  be  disarmed,     .  .  .  .         94,  95 

when  he  may  be  resisted,  .  .  .  95,121 

demeanor  of,    .  .  .  .  .  .96,  97 

who  may  exercise  authority  of,  when  absent,      .  .100 

only  lawful  orders  of,  to  be  obeyed,  .  .  .  101 

bound  to  prevent  undue  exercise  of  authority  on  the 

part  of  his  subordinates,  .  .  .  .101 

malicious  punishment  by,  frowned  upon,        .  .  102 

defence  of,  to  an  action  for  damages,       .  .  105,  106 

penalty  for  preventing  from  defending  the  ship,  .  117 

duty  of,  upon  a  sale  of  the  vessel  and  a  discharge  of  the 

crew, 129,  130 

bound  to  bring  home  destitute  seamen,    .  .  .        136 

malicious  discharge  of  the  crew  by,  .  .         139.  140,  141 

may  discharge  in  a  foreign  port,  when,    .  .  .       142 

liable  for  improper  discharge  of  the  crew,      .  .  145 

authority  of,  over  the  inferior  officers,      .  .  147-150 

when  justified  in  putting  the  officers  upon  a  different 
duty,  ......  151 

when  may  be  a  witness,   .  .  .  .  .153 

substituted,  whether  liable  for  antecedent  wages,      .  15-1,  note, 
duty  of,  with  respect  to  hospital  money,  .  .  .158 

may  bind  owners  or  a  purchaser  by  his  contracts, 

160,  162,  452 
may  charter  the  vessel  in  a  foreign  port,         .  .     161,  162 

cannot  bind  by  a  sealed  instrument  so  as,  &c.,    .  ,162 

may  exempt  himself  from  liability  on  his  contracts,  how,       162 
general  zigent  of  the  owners,  with  respect  to  the  ship. 

161,  162,  note,  165,  note,  183 


INDEX.  563 

MASTER,  continued. 

when  may  bind  owners  for  contracts  made  at  the  place 

of  their  residence,     ....       162,  note,  163 

may  vary  contract  of  the  owner,  .  .  .         ]6'2,  note, 

cannot  bind  owner  to  carry  goods  freight  free,  .  162,  note, 

may  sign  bill  of  lading,     ....  162,  note,  164 

cannot  pledge  freight  for  private  purposes,    .  .  1G2,  note, 

cannot  procure  insurance.  .....      164 

a  stranger  to  the  cargo,  except,  &c.,  .  .         164,  165,  189 

when  may  purchase  cargo.  ....      1G5 

when  may  and  must  sell  cargo, 

189,  190,  191,  248,  251,  259,  479 
bound  for  the  diligence  of  a  pilot,  when,         .  .  165 

privileges  of,  &c.,    .  .  .  .  .  .170 

when  he  acts  as  supercargo  or  consignee, 

170-172,  188,  194,  213,  272,  469 
malicious  acts  of,  ....  .  174 

may  procure  repairs  and  supplies,  .  .   179-181,372 

may  borrow  money,  in  what  cases,    .  .  .     179-182 

how  far  controlled  by  instructions  of  the  owner,  .  .       182 

owners  may  dismiss,  .....     183,  184 

breach  of  blockade  by,       .....       185 

duties  in  time  of  war,  ....     185-188 

when  owner  of  cargo,  bound  by  acts  of,  .  .  186,  187,  188 

duties  and  powers  of,  upon  an  interruption  of  the  voyage, 

189-195,242-247 
duties  of,  in  cases  of  capture,  ....     192,  193 

when  must  take  a  pilot,     .  .  .       202-206,409,413 

when  responsible  for  acts  of,  ....     409-413 

how  must  approach  pilotage-ground,         .  .  .      20 1 

duties  and  responsibilities  of,  as  common  carrier,  206-231 

{Sec  til.  "  CoMMO.N  Cauiuek."') 
may  put  ashore  goods,  placed  clandestinely  on  board, 

unless,  .  .  .  .  .  .210,211 

bound  to  superintend  stowage  of  cargo,  unless,    .  215,  2  Hi 

effect  of  violation  of  contract  of,  .  .     2  IS.  219 

must  deposit  his  sea  letter,  &c.,  in  vvluit  cases,    .  .231 

must  sail  with  first  fair  wind,  when,  &c.,        .  .  232 

may  deviate  from  customary  track,  when,  .  23  1-236 

cannot  change  the  voyage,      ....  238 

when  may  stop,  at  intermediate  ports,       .  .211 

if  ship  is  (lcsline<l   to  several   places,  must  go  to  tlnMii  in 

the  order  designated,  .  .  *'2 

when  may  lake  in  additional  cargo,         .  '-''•^ 

when  mu.sl  tran.'«hip,    .  .  .  •  •     2I.'<-2.'»1 


564  INDEX. 

iMASTER,  continued. 

when  must  store  the  cargo,  .  .  257-259 

\vhat  will  justify  a  sale  of  the  cargo  by,  and  an  invest- 
ment of  the  proceeds,  &c.,  ....     259,260 

what  will  amount  to  ralilication  of  his  acts  in  such  a 
case,        .......      260 

bound  to  take  all  possible  care  of  the  cargo, .  .     261,263 

duty  of,  in  case  of  shipwreck,        ....      261 

duty  of,  upon  arrival  at  port  of  destination,     .  .  272 

what  amounts  to  delivery  by,  .  .  273,  274 

agreement  by,  to  deliver  tlie  goods  to  consignee,        .  275 

duty  of,  when  consignee  is  dead  or  absent,  or  refuses  to 
receive  the  cargo,     ....         276,  277,  278 

may  detain  cargo  for  freight,  .  .  282,  283,  500 

protest  of,  in  cases  of  disaster,  .  .  .     283-285 

duty  of,  when  there  are  conflicting  claims  to  the  pro- 
perty,       ......  285-287 

if  he  receives  the  goods,  must  carry  them  according  to 
direction  of  shipper,  .  .  .  .  301 

responsibility  of,  as  common  carrier,         .  .  288-313 

has  no  lien  on  the  vessel  for  his  wages,  .  .  321 

lien  of,  upon  the  freight  for  advances  and  his  wages,     504-506 
bound  to  the  seamen  for  their  wages,        .  .  327,  329 

whether  substituted  master  is  liable  for  seamen's  wages, 

(See  "Wages.")  329-331 

when  excluded  as  a  witness,  ....     344-346 

hiring  vessel  "  on  shares,"  liability  of,      .  .  347-352 

dispossession  of,  when  a  part-owner,  .  .  365 

whether  and  in  what  cases,  must  control  the  pilot,         411-413 
power  over  passengers,      .  .  .  423,  and  n.  424 

how  to  treat  passengers,  .  .  .  .  430 

authorized  agent  of,  may  sign  bill  of  lading,         .  .450 

whether  he  has  power,  per  se,  to  sign  bill  of  lading,  .  450 

cannot  execute  a  bill  of  lading,  for  goods  not  on  board,         452 
reservation  by,  of  privilege  of  reshipment,  456,  and  note, 

liability  of,  in  cases  of  reshipment,     .  .  .     456-458 

duty  of,  when  consignee  of  tenants  in  common,  .  .      469 

how  may  treat  goods  brought  clandestinely  on  board,  469,  470 
responsibility  of,  with  respect  to  such  goods,  .  .  470 

MATE, 

entitled  to  be  cured  at  the  expense  of  the  ship,     .  82,  154 

whether  he  becomes  actually  master  by  performing  the 
duties  of  master,       .  .  .  .  .83,  154 

not  ordinarily  to  inflict  punishment  upon  the  seamen,     .        99 


INDEX.  565 

]\IATE,  continued. 

when  he  may  inflict  punishment,  .  .      99-101,157 

subject  to  the  authority  of  the  master,  147-150,157 

may  be  degraded  or  displaced,    .  .  .  148,  note, 

for  what  causes  may  be  displaced,  .  .         148,  149,  note, 

does  not  become  quasi  passenger,  when  disrated,      .     150,  151 
position  of,  .  .  .  .  .  .150 

qualifications  of,  .  .  .  .  155 

effect  of  disrating,  upon  wages  of,  .  .  .151 

misrepresentation  of,  as  to  his  health,  .  152 

temporary  appointment  of,  .  .  .  152,  153 

when  he  succeeds  to  the  command,    .  .  .  154 

entitled  to  additional  compensation  upon  succeeding  to 

the  command,     .  .  .  .  .155 

effect  of  his  incompetency,  upon  seaworthiness  of  the 
vessel,  .  .  .  .  .     155,  156 

must  attend  to  the  preservation  and  lading,  &c.,  of  the 
cargo,     .  .  .  .  .     156,  157,  271,  note. 

when  responsible  for  robbery  and  embezzlement,  157 

duty  of,  with  respect  to  the  cargo,       .  .  157 

must  keep  the  log-book.    .  .  .  .  .157 

may  give  orders  to  the  crew,  .  .  .  157 

crew  bound  to  obey  orders  of,        .  .  .  .       1 57 

MATERIAL-MAN, 

a  claim  upon  all  of  the  part-owners,  unless,  .  387 

MEASURE  OF  DAMAGES, 

for  the  improper  discharge  of  seamen,      .  .  146 

for  wrongful  capture  by  privateers,     .  .  .     175,  176 

where  goods  are  lost  or  stolen  from  a  common  carrier,  2()5 

when  sold,  in  consequence  of  not  being  received  by  con- 
signee,    .......      276 

MEDICINE   CHEST, 

when  and  how  provided,  ....  75 

penally  for  default  of,  .  .  75 

c/fect  of,  upon  liability  of  t>liip-owncr,  .  77 

in  what  cases  f*hip-ownor  is  bound  to  pay  for  medical 
advice,  &c.,  notwithstanding  the  provision  of,  .  77,  83 

MISDELIVERY, 

by  fault  of  shipper,  carrier  not  responsible  for,  271 

MONEY, 

wlicii  included  as  part  of  the  baggage,  13.1 

MORTGAGE; 

of  vessels,  where  to  be  recorded,  399,  note. 

MORTGAGEE  OF  A  SHIP, 

liability  of,  for  repairs  and  supplies,  .  391-399 


566  INDEX. 

MORTGAGEE  OF  A  SHIP,  mUimicd. 

ell'ect  of  holding  himself  ont  as  owner,           .  .     392,393 

not  liable  for  wages  of  master  and  seamen,  .            .      394 

liability  of,  when  he  has  taken  possession,     .  .            395 

liability  of,  when  holding  an  unconditional  bill  of  sale,  .      395 

not  made  liable  by  registration   of  name,  as  owner,  at 

the  custom-house,         .            .            .  395, 396,  and  n. 


N. 

NATIONAL  CHARACTER, 

of  seamen,              .... 

.35,36 

of  ships,            .... 

36 

NAVAL  STORES, 

when  deemed  contraband  of  war, 

.      228 

NEGLIGENCE, 

carrier  responsible  for,  in  what  cases, 

199,  2G9,  293 

NEUTRAL, 

must  preserve  his  neutrality, 

.      187 

efiect  of  engaging  in  a  contraband  trade, 

187 

may  carry  contraband   goods,   subject  to  the   right   of 
seizure,    .....      223,  and  note,  224 

acts  that  will  subject  property  of,  to  condemnation, 

188,  222-229 
carrier,  of  enemy's  goods,  when  entitled  to  freight,        485-490 
NOTE, 

when  given  by  vendee  for  goods,  efTect  of  upon  right  of 
stoppage,       ......  529 

NOTICES, 

whether  common  carriej  may  limit  his  liability  by,       436-442 

O. 

OFFICERS, 

of  a  vessel,  subject  to  the  authority  of  the  master,  .      147 

may  be  discharged  by  the  master,      .             .            .  147 

how  treated  by  Courts  of  Admiralty,         .            .  147-148 

ONUS  PROBANDI, 

when  upon  ship-owners,  in  contracts  with  seamen,  .  54 

when  upon  seamen,           .            .            .            .  60,  87 

as  to  sufficiency  of  medicine  chest,    ...  84 

as  to  whether  punishment  of  a  seaman  is  moderate,  .      105 

when  upon  a  common  carrier,      216,  262,  291,  302,  313,  note, 

with  respect  to  misconduct  of  a  pilot,              .            .  421 

"OR  ELSEWHERE," 

how  construed  in  shipping  articles,           .            .  46,  47,  48 


INDEX.  567 

p. 

PARTNER, 

admission  of,  when  binding  upon  the  firm,     .  .  378 

PARTNERSHIP, 

a  ship  may  be  the  subject  of,        .  .  .  ■      357 

when  repairs  and  outfits  of  a  ship,  are  deemed  to  be  on 
account  of,    .  .  •  •  •  •  38*, 

PART-OWNER, 

may  commit  barratry,        ....  108,  109 

liability  of,  in  case  of  tort,        .  .  •*         •  1~^ 

when  acting  as  master,  how  displaced,     .  .  .      184 

contraband  goods  of  one,  do  not  affect  the  goods  of  co- 

tenant,  ....••  ~-" 

effect  of  his  not  claiming  the  contraband  goods,  226,  227 

how  part-ownership  in  a  ship  may  be  acquired.  .  .      355 

of  a  ship,  ordinarily  tenant  in  common,  .  •     355,  356 

can  sell  only  his  share  of  the  property,      .  •      356 

may  become  a  partner,  ....  35* 

dissenting,  will  be  compelled  to  let  the  ship  go.  "upon 

any  probable  design,"'    .  .  .  •  •      359 

majority  of,  have  a  right  to  employ  the  vessel,  .    359,  36-1 

when  minority  of,  may  employ  the  ship,  .  359,  3G7 

when  equally  divided,  those  in  favor  of  employing  the 

ship,  may  send  her  to  sea,  .  .  •  •  360 

dis.senting,  bears  none  of  the  expense  and  shares  none  of 

the  profits  of  the  voyage,  in  what  cases,  .  .361 

when  value  of  his  share  must  be  paid  for,  if  the  ship  is 

lost, 362 

when  must  share  the  fate  of  a  voyage,  undertaken  by  the 

major  interest,     .  .  .  •  •  ^ti'J 

whose  name  does  not  appear  in  the  enrolment,  wlien 

may  demand  security,  .  .  .  •  363 

majority  of,  may  appoint  the  officers  and  crew,    .  .      3(»  J 

agreement  of,  binding  some  of  the  part-owners  as  to  par- 
ticular officers,  .  .  .  •  •  •'b-1 
dispossession  of,  when  master,                   .             •          365,  3G(> 
when  equal  intcrcst.-J  arc  divided,  as  to  the  employment 

of  the  ship,        ....  368,369 

when  Court  of  Admiralty  will  decree  a  nalc  of  the  ship, 

369-371 

repairs  and  supplies  ordered  by,  a  charge  upnn  all  the 

37" 
owners,  .  •  •  •  ^       ^*' 

exclusive  credit  given  to  one  discharges  the  otlicr?",       372,  373 

what  amounts  lo  exclusive  credit,  3<  I.  37. 

when  discharged  by  settlement  with  agent.    .  3<5 


568  INDEX. 

PART-OWNER,  contimtcJ. 

may  bo  ship's  husband,      .....      37fi 

{Sec  "  ShI1''s    HllSBAND.'"') 

cannot  ex  officio  borrow  money  on  account  of  the  several 

owners,  ......  378 

nor  pledge  the  shares  of  the  others,  .  .  .      378 

nor  insure  on  account  of,  .  .  .  .  378 

cannot  recover  premium  paid  for  insurance,         .  .      378 

admission  of,  not  binding  upon  copartner,       .  .  378 

cannot  purchase  cargo,      .....      379 

lien  of,  when  ship's  husband,  .  .  .  379 

lien  of,  upon  shares  of  co-owners,  .  .  S80-382 

remedy  of,  to  obtain  adjustment  of  ship's  accounts,  .  382 

must  all  join  in  an  action,  .  .  .      383,  384,  n. 

when  must  be  joined  in  action  against,  .  .     385-387 

responsible  in  solido  for  torts,        ....      386 

responsible  to  material-men,  although  he  may  have  paid 
a  sum  equal  to  his  share,     ....  387 

not  responsible  for  careless  use  of  the  common  property,      389 
PASSAGE-MONEY, 

when  not  recoverable,        .....      426 

when  not  recoverable  back  by  passenger,      .  .  427 

same  rules  applicable  to,  as  are  established  on  the  sub- 
ject of  freight,      .  .  .  .  •  .442 

when  paid  in  advance,  .  .  .        427,  442,  443 

when  due,  ....•••      443 

and  freight;  governed  by  the  same  rules,        .  .  473 

Admiralty  jurisdiction  of,  .  .  .  •  473-478 

PASSENGER, 

baggage  of,  may  be  detained  for  his  passage-money,       .      283 
authority  of  master  over,  ....    423,  424 

bound  to  do  acts  of  necessity  on  board.    .  .  .      424 

for  his  services  on  board  entitled  to  pay,        .  .  424 

whether  he  may  leave  the  ship  in  a  case  of  emergency,       424 
may  become  a  salvor,        ....     424,  note  3 

contract  of,  within  the  jurisdiction  of  the  Admiralty,  425 

lien  of, 425 

failure  to  carry  to  designated  port,  .  .  425,  426 

remedy  and  lien  of,  upon  breach  of  the  contract,  .  426,  431 
remedy  of,  for  breach  of  contract  as  to  time  of  sailing,  .  426 
when  cannot  recover  back  passage-money,  427,  and  note, 

contract  of,  different  from  contract  to  carry  goods,  .      428 

entitled  to  be  received  on  board,        .  .  .  429 

carrier  may  make  regulations  as  to  the  carriage  of,  .  429 
when  carrier  may  exclude,      ....  429 


INDEX.  569 

PASSENGER,  coiitinued. 

bound  to  obey  regulations,  .  .  .  429 

threats  of,  how  may  be  punished,       ...  430 

how  entitled  to  be  treated,  ....      430 

entitled  to  cabin  passage,  upon  agreement  therefor;  431 

agreement  of,  to  remain  on  board  until  payment  of  his 

passage-money,         ....  431,  note, 

how  much  baggage  may  carry,     .  •  .432 

whether  carriers  of,  are  responsible  for  injuries  to,     .  435 

{See  "  Baggage.") 
passage-money  of,  when  payable,  .  •  -l-l^ 

laws  of  the  United  States  with  respect  to,       .  •     444-448 

PASSENGER  LAWS, 

of  the  United  States,  ....  444-448 

PENALTY, 

when  forfeited  upon  breach  of  a  passenger  contract,        .      426 

PERILS  OF  THE  SEA, 

exception  of,  implied  by  the  law,  .  .  .293 

meaning  of  the  phrase,  .  .  .  •    294,295 

when  defence  of,  will  not  excuse  the  carrier,       .  .      296 

damage  caused  by  wind  comes  within  the  exception,  307 

a  collision,  without  fault  of  either  party,  or  from  negli- 
gence of  injuring  ship,  falls  within  meaning  of,  .      308 
damage  caused  by  a  vessel  striking  ground,  within  tlie 

exception  of,        .  .  •  •  ••      ^^^ 

destruction  of  ship's  bottom  by  worms  does  not  come 

within  exception  of,  .  •  •■      ^^^ 

barratrous  acts  of  master,  do  not  full  witliin  meaning  of,       310 
PETITORY  SUIT, 

character  of, 359,  note  2 

PILOT, 

master  responsible  for  acts  of,  in  what  cases,       .       165,  note  3 
when  must  be  on  board,  .  .  •  •     202-206 

in  what  cases  iho  captain  or  [mate  may  act  as,     .  205 

office  of. '"O,!*)! 

duty  of,        .  .  .  .  ■  •  •       '00 

not  bound  to  go  on  board  a  vessel  in  distress,  unless, 
when  he  takes  charge  of  a  vessel,  must  use  his  utmost 

oxertionB,  &c.,  .  .  .  •  ■ 

his  office  a  private  one,      ...  "^' 

pubject  to  thn  regulations  of  the  law.  .  '"' 

power  over,  whether  exclusively  in  CongrefH.  101-407 

ma.'«ter8  bound  to  take,  .  409,113,419 

anthority  of,  when  on  board,  .  4(t9,     I 


400 
100 


570  INDEX. 

PILOT,  continued. 

when  master  and  owners  exempt  from  liability  for  acts 

of,  .....     409,  410,  417,  421 

whether,  and  in  what  cases  master  may  control,        .     411-413 
out-going  vessels  may  select  their  own  pilot,        .  .414 

elfect  of  permanent  engagement  of,    .  .  .  414 

whether  to  see  that  the  anchor  is  in  a  proper  situation  to 

be  dropped,  ......    414,  415 

respon.sibility  of,  while  the  vessel  is  in  tow  of  a  steam-tug,    41 G 

PILOTAGE, 

power  over,  whether  exclusively  in  Congress,      .  401-407 

lien  for, 407,  408 

half-pilotage  lien,      ......    408 

PIRACY, 

if  master  commits,  owners  not  liable  for,    .  .  .    183 

PIRATE, 

who  deemed  to  be,  .  .  .      114,115,116,117 

robbery,  when  considered  as,  .  .  .  .    114,116 

confederation  with,  .  .  .  .  .119 

POSSESSION, 

what  sufficient  to  defeat  the  right  of  stoppage  in  transitu,  528,  529 

POSSESSORY  SUIT, 

what  is,  .....  360,  note. 

POST-OFFICE  PACKET, 

may  be  arrested  for  seamen's  wages,  when,  .  .     335 

PREMIUM, 

for  insurance,  when  not  recoverable  by  a  part-owner,  378 

PRIVATEERS, 

liable  for  torts,  &c.,  in  what  cases,       .  175,  176,  177,  178 

PRIZE  COURTS, 

jurisdiction  of,         .....  .      485 

doctrines  of,  with  respect  to  freight,  peculiar,  .     485-490 

PRO:\IISSORY  NOTE, 

by  one  part-owner,  does  not  discharge  the  others,  unless,      374 
deemed  to  be  conditional  payment,  .  .  .      375 

PRO  RATA  FREIGHT, 

{See  "  FuEiGiiT.'") 

PROTEST, 

when  master  should  have  drawn  up,        .  .  .      283 

what  it  contains,  .....      282,  284 

benefit  of,   .......      283 

PROVISIONS, 

quantity  to  be  put  on  board  every  vessel  bound  on  a  voy- 
age across  the  Atlantic  Ocean,  .  .  .  .70 
quantity  for  longer  or  shorter  voyages,            .            .  71 


INDEX.  571 

PROVISIONS,  conthiued. 

act   respecting,  applies  to  all  voyages  in  proportion  to 

their  duration  and  to  seamen  shipped,  either  abroad  or 

at  home,  .  .  .  .  .  .71 

penalty  for  not  having  on  board  tlie  requisite  quantity  of,        71 
\vhat  excuses  the  master  and  owners  from  not  having  on 

board  the  requisite  quantity  of,  ...  72,  73 

where  crew  are  put  upon  allowance  of,  navy  ration  is 

deemed  the  standard  of  a  proper  allowance,     .  .        72 

effect  of  supplying  another  ship  with,  .  .  73 

wlien  deemed  contraband  of  war,  .  .  .      228 

PUNISHMENT  OF  SEAMEN,         ....      84-106 
must  not  be  immoderate,  .  .  .  .  .87 

standard  of  moderation  of,       ...  .  87 

inquiry  should  precede  infliction  of,  .  .  .        88 

should  be  administered  with  calmness  and  deliberation, 

89.  151,  note, 
excessive,  will  render  the  party  liable  to  damages.  90.  134,  note, 
unusual,  frowned  upon,      .  .  .  .  .91 

may  be  inflicted  for  past  offences,       ...  96 

effect  of  violent  language,  .  .  .98 

ordinarily  confined  to  the  master,        ...  99 

malicious,  how  punished,  .  .  ■  102,  103 

PURCHASER, 

of  goods  from  consignee,  when  liable  for  freight,      .    506,507 

R. 

RATIFICATION  OF  SALE, 513 

RATS, 

who  responsible  for  damage  caused  by,  .  2C3 

whether  keeping  cats  on  board,  exempts  carrier  from  re- 
sponsibility for  injury  by,  .  .         263,  note  2,  264 

RECEIPT, 

only  ;j?j7nay(;cic  evidence  of  payment,  .  317 

effect  of,  when  given  to  an  agent,  37.'),  and  note, 

bill  of  lading  considered  as,      ....  453 

REPAIRS  AND  SlI'l'MES, 

master,  agent  to  procure,  .  .  •  ^"^^t  '•''• 

owners,  wh<;n  liable  for,  .179 

what  are  deemed  to  be  necessary,  •"^ 

lien  for, 17!.,  1  so,  267 

when  master  liable  for,  l.vo,  ISl,  372 

ordered  by  a  part-owner,      .  .  ■  •    ^'* 

creditors  must  look  to  the  person  to  whom  exclusive  ere- 

(Jit  was  given,  .  .0*0 


572  INDEX. 


REPAirvS  AND  SUPPLIES,  mitinucd. 

when  deemed  to  be  an  account  of  partners,     .  .  382 

when  underwriters  liable  for,  ....    388 

when  mortgagees  liable  for,      ....  391-399 
credit  for,  to  whom  presumed  to  be  given,  391,  393 

holder  of  unconditional  bill  of  .sale,  liable  for,  unless,        .    395 
Admiralty  no  jurisdiction  for  breach  of  contract  to  make, 

477,  note. 

RESHIPPING, 456,  457 

(See  "  Bills  of  Lading"  and  "  Master.") 

REVOLT, 

"  endeavor  to  commit,"  offence  of,     ...  66 

what  constitutes  offence  of,  .  ,  .  118,119,123 

refusal  to  serve  under  substituted  master  amounts  to, 

unless,    ......  127,  12S 

RIGHT  OF  SEARCH, 

effect  of  resistance  of,  .  .  .  .  .  187 

when  justifiable,     .  .  .  .  .  .187 

RUDDER, 

common  carrier  responsible  for  loss  caused  by  breaking 
of, 307 

S. 

SALE, 

of  a  vessel  abroad,  effect  of,  upon  the  seamen,    .  .130 

when  justifiable,  .  .  .  .  .     130,  131 

of  cargo,      ....  249,  251,  257,  259,  266,  267 
of  the  ship,  upon  disagreement  of  part-owner,  .  369 

SALT, 

how  to  be  stowed,  .  .  .  .  ,216 

SALVAGE, 

lien  for,  when  it  takes  precedence  of  wages,  .  319 

what  must  contribute  to  payment  of,         .  .  .      511 

SEALED  INSTRUMENT, 

jurisdiction  of  the   Admiralty,  of  a  contract  evidenced 
by,     .  .  .  .  .  .  .    338,  339 

SEAMEN,  ^ 

in  peace,  may  serve  under  any  flag,         .  .  .35 

national  character,  how  determined,  ...  36 

who  may  be  employed  as,  on  board  Afnerican  vessels,  36-39 
foreign,  upon  what  condition  received  on  board  our  ves- 
sels as  passengers,  .  .  .  .  .  ^  37 
provision  for,  when  destitute  in  a  foreign  port,  .  39,  136 
provision  for  relief  of,  in  home  port,  .  .  157-160 
agreement  of,  when  to  be  in  writing,   .            .            .42,  43 


INDEX.  573 

SEAMEN,  continued. 

shipping  articles,  and  list  of  crew,  contain  all  the  condi- 
tions of  contract  of,     .  .  .  .      52-54 
shipped  contrary  to  Acts  of  Congress,  penalty  for,  .  52,  53 
rights  of,  how  guarded  by  Courts  of  Admiralty,           .       54,  55 
must  tender  themselves  on  board  at  the  stipulated  time,    55,  56 
penalty  for  not  being  on  board  at  the  stipulated  time,      .        56 
deserting,  how  appreheuded,  ....  56 
wages  of,  forfeited  by  absence  or  desertion,         .            .  57-59 
harboring  or  secretion  of,  how  punished,        .            .         59, 60 
debts  against,  when  not  recoverable,         .            .            .60 
when  not  bound  by  shipping  articles,              .             .  61 
when  may  demand  survey  of  the  ship,      .            .            .62,  68 
must  protect  the  vessel  throughout  all  perils,              .  65 
when  may  insist  upon  return  of  the  ship,  .            .            .65,  66 
must  abide  by  the  ship  when  unseaworthiness  is  removed,        69 
may  lay  their  complaints  before  an  American  Consul,     .        70 
penalty  for  putting  on  short  allowance,           .            .  71 
may  leave  the  ship  if  provisions  bad,        .            .             .  74,  n. 
cured  at  the  expense  of  the  ship,         ...  74 
medicine  chest  for,             .....  74-85 
when  entitled  to  medical  attendance,  .            .            .        80,81 
when  may  be  confined  in  irons,    .            .             •            .90 
when  imprisoned,  &c.,  must  be  brought  home,          .  92 
when  may  resist  the  master,          .            .            •            .94 
when  may  disarm  the  master,             ...  94 
bound  to  obey  only  lawful  commands,     .             101,  151,  note, 
bound  to  obey  in  a  river,  &c.,              ...             104 
in  suit  for  damages,  character  of,  put  in  issue,     .             .      105 
penalty  for  laying  violent  hands  upon  the  master  by,             1 17 
when,  may  restrain  the  master,                  .                         .121 
must  serve  under  substituted  master,  unless,  .            .    127,128 
elfcct  upon,  of  a  sale  of  tho  vessel  abroad,            .            .130 
provision  for  their  return  homo,           .            .            .             130 
wage.9  of,  when  di.schargod  upon  capture,                       131,  132 
discharge  of,      .             .                          •             •             •     129-147 
wages  of,  when  discharged  for  cruel,  ike,  treatment,       .      135 
destitute  and  sent  homo,  bound  to  do  duty  on  boaril,     13i>,  137 
may  be  discharged,  for  wlial  cause.'*,                        1  13,  1  1 1,  145 
must  be  compelent,  &c.,  for  the  service  lliey  stipulate  to 

perform,         .  .  ■  •  .    150,  151 

temporary  apjiointment  of,  to  the  poPt  of  mate,    .  I.'i2,  153 

of  a  neutral  ship,  bound  to   remain  li>,  until  condem- 
nation, &c.,   .  •  •  ^ 
effect  of  their  negligence  upon  insurance,                               *y3 


574  INDEX. 

SEAMEN,  continued 

remcily  of.  for  their  wages,      ....    314-352 

{See  "  Wages.") 
when  may  testify  for  each  other,  .344,  and  note, 

what  etlect  will  be  given  to  receipts  and  releases  of,     346,  347 
SEAWORTHY. 

every  ship  must  be,  at  the  commencement  of  the  voyage,  63,  64 
meaning  of,       .  .  .  .  .  .64,  155 

when  a  vessel  is  not  so,  the  seamen  may  insist  upon  her 
return  home,        ......        65 

whether  employment  of  a  pilot  is  necessary  to  consthute, 

205,  419,  and  note. 

ship's  documents  essential  to  seaworthiness,  .  .  229 

SET-OFF,  .  .       •     .  .  .  .  .        469,  note. 

SHIP-OWNERS, 

appointment  of  master  by,       .  .  .  .        33,  34 

responsible  for  conduct  of,  ...  34,  35 

construction  of  shipping  articles  against,  when  ambiguous 
or  uncertain,  .....        48,  49 

may  engage  men,  at  wages,  to  take  fish  for  their  account,        61 
responsible  for  improper  discharge  of  seamen,     .     145,  155,  n. 
bound  to  have  on  board  a  competent  mate,    .  .  155 

bound  by  contracts  of  the  master,  in  what  cases, 

IGO,  1G3,  182,  449 
when  not  bound  by  master's  contract,       .  .  163,  168-170 

extent  of  liability  of,  &c.,         .  .  167,  182,  183,  185 

not  liable  for  goods  taken  on  board  clandestinely,  .      169 

liability  of,  for  acts  of  master,  acting  as  factor  or  consignee, 

170-172,  194,  212,  213 
whether,  ipso  facto,  acceptors  of  the  draft  of  the  master,  172 

when  answerable  for  torts  of  master,      172,  173.  174,  178,  386 
instructions  of,  how  far  binding  on  the  master,     .  .      182 

bound  for  violation  of  blockade  by  the  master,  .  185 

answerable  as  common  carriers,    .  .  .  196-200 

duties  of,  as  common  carriers,  .  .  .     196-200 

not  responsible  to  their  cestuis  que  trust,  &c.,  for  miscon- 
duct of  the  master,         .....      260 

bound  for  proceeds  of  sale  of  the  cargo,         .  .  267 

responsibility  of,  as  common  carriers,       .  .  288-313 

liable  for  the  wages  of  seamen,  although  names  of,  not 

stated  in  shipping  articles,    ....  327 

liable  for  wages,  notwithstanding  a  sale  of  the  vos.-?el,     .      328 
liable  for  wages  of  a  supernumerary,  .  .  .  328 

when  exempt  from  liability  for  repairs  and  supplies,     372,  373 
when  liable  for  acts  of  a  pilot,       .  .      409,  410,  417,  421 


INDEX.  0/0 

SHIP-OWNERS,  continued. 

liability  of,  when  master  fails  to  take  a  pilot,  .  420 

by  whom  action  against,  should  be  brought,         .  .      466 

when  not  entitled  to  demand  freight  of  sub-shippers,  497 

SHIPPER  OF  GOODS, 

lien  of,         ....  166-168,206.291,449 

remedy  of,        .  .  .  .  .  .  449 

must  have  them  marked,  .  .  .  .  ,212 

bound  by  established  usage  as  to  mode  of  stowing,  .  214 

no  right  to  demand  cargo  at  intermediate  ports,  unless,  250,  478 
indemnity  of,  where  goods  of,  are  sold  for  repairs,  &c., 

267,  268,  269 
misdelivery  by  fault  of,      .  .  .  .  .271 

may  examine,  before  making  himself  liable  for  freight,         281 
acceptance  of,  does  not  bar  right  of  action,    .  .  304 

must  pay  full  freight,  if  he  demands  the  goods  at  inter- 
mediate port,       .....  250,  478 

entitled  to  receive,  when  cargo  of  a  perishable  nature,  485 

SHIPPING  ARTICLES, 

when  required  to  be  made,       ...  42,  43,  45 

not  required  in  whaling  or  fishing  voyages,  .  .45 

must  state  the  ports  at  which  the  voyage  begins  and  ends,        46 
uncertain  phrases  in,  how  construed,  .  .  .        46-52 

and  list  of  crew,  contain  conditions  of  contract  with  the 

crew,        ......  52-55 

void,  when,        ......         53-55 

unusual  conditions  in,  liow  construed,       .  .  .54 

presumed  to  import  verily,       ....  55 

open  to  explanation,  .  .  •  ■  .55 

the  lime  wheii  seamen  shall  render  themselves  on  board 

to  be  stated  in,  .  .  •  55-56 

of  fishermen,  what  must  express,  .  .  .  60-61 

entry  on.  nf  mariners  discharged,  .  •  135 

SHIPPING  NOTE, 

nature  of,    .  .  •  •  •      '"^  '^ 

whether  delivery  of,  by  consignee,  will  defeat  right  of 
stoppage,  .  .  •  •  ^'^^ 

SHIPS  mSHAM), 

who  may  be,  ......      3^6 

hirt  dutie."',  •  •" 

his  powpr^  ....     376,  377,  and  note. 

cannot  borrow  money  on  account  of  owner?*,  .  3<8 

nor  pledge  the  shares  of  the  several  ownern,        .  378 

nor  insure  the  fhip,      .  .  .  •  •  ^'" 

cannot  purcha-^e  a  cargo,  .  .  •      * '* 


57G  INDEX. 

SHIP'S  HUSBAND,  continued. 

no  lieu  for  outfits  and  disbursements  upon  the  ship,  .  379 

lien  of,  when  a  part-owner,  ....      379 

when  he  has  lien  on  proceeds,  &c.,  of  the  voyage,       379,  380 
when  exclusively  liable  for  repairs,  &c.,  372,  373,  375,  387,  388 

SHIPS, 

how  to  be  manned,       .....        36-41 
engaged  in  the  fisheries,  how  to  be  manned,        .  .        39 

engaged  in  the  coasting  trade,  how  to  be  manned,    .       39,  40 
penalty  upon,  for  illegal  manning,  .  .  39,  40 

what  excuses  improper  manning  of,   .  .  .  40 

when  survey  of,  may  be  required  by  the  seamen,  .        62 

casting  away,  &c.,  of,  .  ....     Ill,  112 

effect  of  sale  of,  upon  the  seamen,  .  .  129,  130 

bound  in  s/;ecie  for  contracts  of  master,  .  .     166-169 

effect  of  overloading,  ....        200,  note, 

property  in,  how  may  be  acquired,     .  .  .  355 

held  by  part-owners  as  tenants  in  common,  .  355-357 

may  be  the  subject  of  partnership,      .  356  and  note,  357 

how  to  be  fitted  up  for  the  conveyance  of  passengers,  444-448 

SHIPS  DOCUMEiNTS, 

necessary  to  seaworthiness  of  the  vessel, .  .  229,  230 

of  a  dubious  character,  when  may  be  used,  .  .  230 

what  are  essential, .....        230,  note. 

SHIPWRECK, 

in  cases  of,  master  may  sell  the  cargo,  provided,  &c., 

255,  note,  256,  259,  note, 
in  cases  of,  duty  of  master  with  respect  to  the  property 

intrusted  to  his  care,  .  .  .       261,  and  note, 

effect  of,  upon  freight,  where  cargo  is  saved,        .  .518 

SICKNESS, 

of  seamen,  to  be  cured  at  the  expense  of  the  ship,  .  74 

effect  of  a  medicine-chest  upon  the  liability  of  the  ship- 
owner,    .......        80 

of  seamen,  to  be  cured,  although  occurring  in  a  foreign 
port,  .......  84 

SNAGS, 

damage  caused  by  running  against,     307,  n.,  309.  n.  3,  313,  n. 

STEAMBOATS, 

when  common  carriers,     .....      458 

STEAM-TUG, 

liability  of,         .  .  .  .  .  .  416 

STEVEDORE, 

no  lien  in  the  Admiralty,   .  .  .  .  .355 


INDEX.  577 

STOPPAGE  IN  TRANSITU, 


'J 


meaning  of,       .  .  .  .    519,  524 

right  of,  derived  from  equit}-.         .  524-532,  533,  538 

right  of,  when  determined,       .  .  519,520,528,529 

who  may  exercise  right  of,  .  519,  526,  527 

when  right  of,  remains,  aUhough  goods  have  passed  into 
the  hands  of  vendee,  ....    520,  537 

if  consignee  insolvent  at  the  time  of  consignment,  right 

of,  cannot  be  exercised,  .  .  521,  n. 

right  of,  adverse  to  that  of  consignee,  .  .  522 

right  of,  how  affected  by  consignee  disagreeing  to  con- 
signment, ......      523 

how  affected  by  his  assigning  the  goods  for  sale  on  ac- 
count of  consignor,  .....  523 

exercise  of  right  of,  does  not  rescind  the  contract,  524,  525 

to  e.xercise.  consignor  must  pay  intervening  charges  upon 

the  goods,  ......      524 

right  of,  how  affected  by  taking  bills  of  exchange,    .  527 

effect  upon,  of  attachment  of  the  goods  on  board  the 

vessel,      .......      529 

whether,  may  be  exercised,  after  the  goods  are  lodged  in 
the  custom-house,     .....    529,  530 

whether  right  of,  ended  by  landing  the  goods  upon  con- 
signee's wharf,     ......      530 

effect  upon,  of  placing  goods  in  a  public  .store,  under  the 

warehousing  system,  .  .^3 1 

effect  upon,  of  part-delivery.  531-533 

effect  upon,  of  placing  the  goods  in  consigMCc's  vessel,   533-535 
effect  upon,  of  delivery  to  a  warehouseman  or  wharf- 
inger, ......     535-537 

when  may  bo  exercised,  notwithstanding  a  sale  by  con- 
signee,    .......      538 

when  it  exists  upon  a  sale  of  the  goods  .stored  in  aware- 
house,  ......    538,  539 

what  act.s  will  amount  to  sufficient  delivery,  so  as  to 
defeat  right  of,     .....  53S-.MI 

what  amounts  to  an  exercise  of  the  right,  .'>41 

transfer  of  lulls  of  l.nling  defcata  the  riglil  of.  nnloss.  kc, 

541-543 
right  of,  cannot  bo  exercLsed,  if  the  goods  were  Bhippod 
fo  pay  a  debt,  &c.;  .  .  •  •      ••1-' 

nor  if  coii.Hignnc  entitled  to  the  property  for  the  «»c  of  a 

third  person,  .  .  .  .  •  •'"'''2 

STOWAGE, 

of  goods,  how  muM  be  done  200-210 


578  INDEX. 

STOWAGE,  continued. 

what  relieves  the  master  from,  .  .  .  215 

bad,  meaning  of,    .  .  .  .  .  215,  n. 

SURVEY, 

of  ships,  when  crew  may  obtain,       .  .  .62,  68 

result  of,      .  .  .  .  .  .  .69 

expenses  of,  who  must  pay,     ....  69 

SURVEYORS, 

advice  of,  to  sell  damaged  cargo,  not  sufficient  to  justify 
the  sale,  .......      258 

•'SWEATING  OF  THE  HOLD," 

when  carrier  responsible  for,  .  .  .  .  313 

T. 

TACKLE, 

must  be  provided  by  the  master  for  the  reception  and 
unlading  of  the  goods,    .....      217 

TENANTS  IN  COMMON, 

part-owners  of  a  ship,  whether,  .  .  .  355 

not  responsible  for  careless  use  of  the  common  property,      389 
shipment  of  goods  by,  the  consignment  deemed  to  be 

several,    .......      469 

TIME, 

allowed  to  master,  to  repair  the  ship,  &c.,      .  .     249,  250 

of  delivery,  carrier  responsible  for  diligence  with  respect 

to,  .  .  .  .  .  304,  312,  426 

breach  of  contract  as  to,  efTect  upon  freight,  .  .     494-496 

TRADING  SHIP, 

(See  "  Conveyance  of  Goods.") 
TRANSHIPMENT, 

of  cargo,  when  it  must  be  done^  100-193,  245,  248,  496 

if  shipper  will  not  consent  to,  must  pay  full  freight,         .      246 
TRANSITUS, 

of  goods,  when  ended, 

519,  520,  528,  529,  530,  531,  533-535,  538,  539 
TROVER, 

may  be  maintained  against  a  co-tenant  for  sale  of  the 
common  property,    ....  357,  note. 

U. 

UNDERWRITERS, 

on  vessels,  how  protected,  111,112,113 

de  facto,  entitled  to  the  protection  of  our  statutes,      .  113 

by  what  causes  discharged,            .             .  202,  note  2,  204 

liable  for  losses  occasioned  by  collision,  .      270,  note,  308 

must  pay  extra  freight  upon  transhipment,  .            .      247 


INDEX.  579 

UNDERWRITERS,  coixtinued. 

discharged,  when  vessel  is  condemned  for  resistance  of 

search,  .....  270,  note, 

when  they  become  owners,  liability  of,    .  .      398 

discharged,  when  master  fails  to  take  a  pilot,  .  419,  n.  2. 

UNSEAWORTHLXESS, 

justifies  the  seamen  in  insisting  upon  a  return  of  the  ves- 
sel,    .  .  .  ■  ■  ■  .        65,  66 
effect  of,  when  occurring  after  sailing,      .  66,  note, 
occurring  in  a  foreign  port,      ....  68 
if  loss  is  not  occa.'^ioned  by,  whether  carrier  is  respon- 
sible for  existence  of,      .            .            •            •            .199 

V. 

VENDEE, 

{See  '•  CoxsiGXEE.'') 

VENDOR, 

(See  ••  Consignor.'"') 
VOYAGE, 

to  be  described  in  the  shipping  articles,    .  .  .46 

uncertain  description  of.  how  construed,         .  46-50 

intermediate  course  of,  when  not  described  in  the  ship- 
ping articles,        ......        50 

interruption  of,  .....      189-195 


\V. 


WAGES, 


of  seamen,  forfeited  by  absence  or  desertion,  57-59 

e.xtra,  when  allowed  as  a  penalty,  71-72 

how  affected  by  arrest,  &:c.,  of  a  seaman,  .  1.1,  143,  note  1 
when  not  paid  over  to  the  consul  upon  a  sale  of  the  ves- 
sel, may  be  recovered  here,  .  .133 
effect  of  incapacity  upon,  .151,152 
effect  of  misrepresentation  upon,  ....  152 
mu.st  be  paid  according  to  the  nature  of  tlie  service,  152.  153 
remedy  of  seamen  for,  ....  314-352 
lien  of  ma.ster  for,  and  advances,  .  321,  322,  504-506 
lien  of  seamen  for.  322,  323 
lien  of  seamen  for,  upon  tlio  car;;n,  .  .  323 
when  earned  in  antecedent  voyage.'*,  whctlicr  lien  for, 

taken  precedence  of  lien  of  shippers,  325,  and  note,  326,  327 
triple  security  for,*  •'*' 

owner  liable  for,  althongli   his  name  is  not  .••l;itcd  in  the 

shipping  arlirle.'<,  .  .  .  •  •      •'VS 

owner  liable  for,  notwithstanding  a  salo  of  the  vessel,  328 

"        "        "     wages  of  supernumerary,  32R 


iSO 


INDEX. 


331,  332 


332 
333 
333 


WAGES,  contiiiucd. 

substilutetl  master,  liable  for  wages  of  seamen,    .  329-331 

remedy  of  seamen  for,  in  cases  of  abandonment  for  total 
loss,  .... 

when  earned  in  rigging  out,  &c.,  a  ship  for  a  voyage, 
remedy  for,         ...... 

when  earned  before  commencement  of  the  voyage, 

when  voyage  is  abandoned.     .... 

must  be  earned  in  the  business  of  commerce,  &c.,  to 
give  Admiralty  jurisdiction  of,    . 

{Sec  "  Jurisdiction. "'") 

lien  for,  upon  a  post-ofTice  packet. 

vessel  liable  for,  although  seized  by  revenue  officers, 
&c.,  .... 

not  due  for  illegal  voyage, 

lien  for,  when  must  be  enforced.  . 

lien  for,  exists  against  the  government.     . 

of  an  apprentice,  .... 

of  a  slave,  ...... 

when  charterer  of  the  vessel  liable  for. 
WAR, 

when  it  operates  to  dissolve  contracts. 
WAREHOUSEMEN, 

to  what  extent  responsible. 

whether  delivery  to,  destroys  the  right  of  stoppage, 
WARRANTY, 

of  insurance, 
WASHINGTON,  JUDGE, 

character  of,     . 
WEAPONS,   DEADLY, 

what  justifies  the  use  of,  .....  93,94 
WHALING  VOYAGE; 

owners  of  the  vessel,  bound  by  the  acts  of  their  agent  for 
repairs,  &c.,  .  .    ■         .  362,  note  2. 

WITNESS, 

when  master  may  be.       ....    153,344-346 

when  mariners  may  be  for  each  other,  .  .  344 

WORMS, 

destruction  of  ship's  bottom  by.  carrier  liable  for,  264,  309 


343 
335 


.     335,  note  3. 

339 

339,  340,  and  note  2. 

.      343 

343 

343 

.    347-352 

468,  485 


467 
.       537 

202,  note  2. 


149,  note. 


i 


THE    END. 


M 


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